http://www.tompaine.com/articles/2006/07/1...ary_justice.php
Defending Military Justice
This week sees a convergence of events in the attempts of our system of law and order to survive an assault on its very foundations launched by Bush & Co.
The Supreme Court has definitively ruled that not only does the rule of law apply to Bush's "war on terror" but that international law is part of that law. Thus, early yesterday The Financial Times broke the story that Rumsfeld's Defense Department has issued a memorandum requiring now, five years after 9/11, that basic Geneva conventions concerning humane treatment of detainees be applied to all those in U.S. custody.
Of course, the administration tried to deny that this was a big deal. The Financial Times shows the absurdity of that claim:
The White House insisted that the move did not represent a change in policy. But the July 7 Pentagon memo stood in stark contrast to a February 2002 memo in which President George W. Bush said: “Common article III of Geneva does not apply to either al-Qaeda or Taliban detainees.”
What do Geneva rights mean to detainees? Yesterday the Center for Constitutional Rights released a detailed report based on newly-declassified information that gives newly detailed narratives of what has gone on in Cuba: "systematic" abuse. From a Canadian press account of one Canadian citizen, Omar Khadr, who was 15 when he was picked up by U.S. forces in Afghanistan :
The 51-page report is based on declassified accounts from some of the 450 prisoners and their American lawyers.
It says Khadr, who was 15 and seriously wounded when he was picked up by U.S. soldiers in Afghanistan, was often interrogated with a bag over his head and barking dogs in the room.
When he was able to walk, interrogators made him pick up trash, then emptied the bag and made him do it again. He wasn't allowed to go to the bathroom for long periods.
Khadr claims that an interrogator told him on one occasion in March 2003 that one of his older brothers was at Guantanamo and that he should get ready for a "miserable life."
The interrogator became enraged when Khadr said he would answer questions if he could see his brother, the report said.
Khadr was cuffed to the floor for a long period and then dragged back and forth in a mixture of his urine and pine oil. He wasn't given a change of clothes for two days.
Other examples of abuse at Guantanamo detailed in the report:
-Solitary confinement for periods exceeding a year.
-Sleep deprivation for days, weeks and, in at least one case, months.
-Threats of transfer to a foreign country for torture.
-Deprivation of medical treatment for serious conditions.
Several prisoners reported assailants stomped on their backs or shoved their heads into hard surfaces while they were incapacitated. Others said objects were inserted into their anuses during strip searches.
But this has implications beyond Guantanamo: The court's decision, and the Pentagon's acknowledgment, affects also the unknown number of "ghost detainees" whose very existence is denied by the administration but whose presence in CIA-run cells in the dark corners of the Earth, as The Financial Times points out:
The move could increase pressure on the administration to rule that detainees being held by the CIA in secret prisoners – such as Khaled Sheikh Mohammed, the alleged mastermind of the September 11 2001 attacks – should receive Geneva protections.
Steven Bradbury, acting assistant attorney-general, on Tuesday told a Congressional committee that the Supreme Court had ruled that Common article III applied to the conflict with al-Qaeda, suggesting that it was not limited to military operations. The CIA declined to comment.
“Incommunicado detention clearly violates this standard,” said Jennifer Daskal, advocacy director at Human Rights Watch. “At a minimum, the administration can no longer justify its continuing denial of ICRC’s repeated request for access.”
Meanwhile, perhaps hoping to slip it past us while we are being distracted by these important developments, Bush continues to push one of key architechts of his policies on detention and torture that the Supreme Court has just found illegal into a federal judgeship.
Todd Haynes, general counsel to the Department of Defense, advised that detainees at Guantanamo could be subjected to abusive interrogation techniques, including stripping them naked, depriving them of light, forcing them into stress positions, forcibly shaving them, and using dogs to intimidate them. He also advised that using wet towels and dripping water to make the detainees believe they are suffocating (waterboarding) and threatening them and their families with death might be “legally available” options.
As Human Rights First reports, more than twenty "retired generals, admirals and other U.S. military leaders" have signed a letter of concern to the heads of the Senate Judiciary Committee expressing concern. From their letter:
Had Mr. Haynes been ignorant of the likely consequences of these policies, the profound errors he made could perhaps be understood. But the uniformed JAGs [(judge advocate generals, the heads of the military justice system)] of each of the services clearly and repeatedly expressed their concerns about the impact these policies would have both on the reputation of the United States and on the integrity and safety of military personnel. The Army Judge Advocate General, Maj. Gen. Thomas Romig, warned that this disdainful approach toward the Geneva Conventions and binding international law “will open us to international criticism that the ‘U.S. is a law unto itself,’” and that the adoption of questionable techniques will lower international standards, “putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades.” These prescient warnings were echoed by the flag officer Judge Advocates General of the Navy, Air Force and Marine Corps. But Mr. Haynes failed to heed them.
Today, it is clear that these policies, which rejected long-standing military law grounded in decades of operational expertise, have fostered animosity toward the United States, undermined rather than enhanced our intelligence gathering efforts, and added significantly to the risks facing our troops serving around the world.
Meanwhile, "the military's four most senior uniformed lawyers" will be calling on the Judiciary Committee this week to urge the application of international and military law in dealing with detainees:
“We should be embracing Common Article 3 and shouting it from the rooftops,” Admiral [John] Hutson [, the Navy's top lawyer until 2000] said. “They can’t try to write us out of this, because that means every two-bit dictator could do the same.”
He said it was “unbecoming for America to have people say, ‘We’re going to try to work our way around this because we find it to be inconvenient.’ ”
“If you don’t apply it when it’s inconvenient,” he said, “it’s not a rule of law.”
Brig. Gen. David M. Brahms, a retired officer who was the chief uniformed lawyer for the Marine Corps, said he expected experienced military lawyers to try to persuade Congress that the law should not be changed to allow the military commissions to go forward with the procedures that the court found unlawful.
“Our central theme in all this has always been our great concern about reciprocity,” General Brahms said in an interview. “We don’t want someone saying they’ve got our folks as captives and we’re going to do to them exactly what you’ve done because we no longer hold any moral high ground.”
Look, this doesn't strike me as being a very difficult decision here. We are going to get a very clear chance to see soon who in Congress really is concerned about supporting our troops, listening to their opinions and doing their utmost to protect them. We will see who is concerned about "law and order" and enhancing our security. We will see who is a "strict constructionist" of the law and who favors radical revisions of legality. Ultimately, we will see which legislators have "moral values" in this fight.