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> Comment 8 Mar 06

The sad, lawless saga continues: GTMO detainees remain in legal black hole.

In a short but important introduction to Chapter 25 of Neo-CONNED! Again, the editors relate how Judge Robertson of Washington, DC, put a stop to the Bush administration's military commissions due to numerous legal problems with them -- problems which arise both from the Constitution and from international humanitarian law, as enshrined in the Geneva conventions ratified by the U.S. Senate.

With little public notice or fanfare, Robertson's hold on the commissions was overturned last July by a three-judge appeals panel (John Roberts, the new Chief Justice, was one of the panelists) on the grounds -- unbelievable though they might seem -- that the Geneva Conventions are not enforceable in U.S. courts!

The recent assertion by White House lawyers regarding the legal redress available (or, more correctly, unavailable) to detainees in GTMO simply heaps insult upon injury in what is perhaps the most scandalous abuse of the "law" in recent memory.

Last Friday's Washington Post reported that, in response to "a claim of torture by a Guantanamo Bay detainee, [administration lawyers] argued that the new law that bans cruel, inhuman or degrading treatment of detainees in U.S. custody does not apply to people held at the military prison.... Justice Department lawyers contended that a detainee at Guantanamo Bay, Cuba, cannot use legislation drafted by Sen. John McCain (R-Ariz.) to challenge treatment that the detainee's lawyers described as 'systematic torture.' Government lawyers have argued that another portion of that same law, the Detainee Treatment Act of 2005, removes general access to U.S. courts for all Guantanamo Bay captives. Therefore, they said, Mohammed Bawazir, a Yemeni national held since May 2002, cannot claim protection under the anti-torture provisions."

The good news is that at least U.S. District Judge Gladys Kessler said "found allegations of aggressive U.S. military tactics used to break the detainee hunger strike 'extremely disturbing' and possibly against U.S. and international law." The bad news is that not only Justice Department lawyers but seemingly everyone else -- including Tom Malinowski, Washington advocacy director for Human Rights Watch, and Thomas Wilner, a lawyer representing several detainees at Guantanamo -- admits that these GTMO detainees at Guantanamo "have no recourse to challenge [these aggressive tactics] in court."

A close reading of the statute would seem to confirm this interpretation. Section 1003 of the 2005 Detainee Treatment Act says that "no individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment." Fair enough. It even specifies that nothing in this section of the statute "shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section."

So what's the problem? Why is this law, so vehemently opposed in its inception by the White House and -- lest we forget -- the subject of a confrontational meeting between the vice president and the three senators (McCain, Warner, and Graham), and so positively touted not only by these senators but eventually, after the President "consented" to a ban on U.S. government torture (indeed, how unreasonable!), touted by the administration itself, now deemed "irrelevant" by government lawyers?

Because of the quid pro quo inserted into the legislation that was the price McCain and Co. paid to get the torture ban on the books in the first place. Or at least a suspicious mind would suspect it as a quid pro quo, and suspicion is certainly a reasonable attitude to take towards the current regime in the U.S.

In what was originally (and in itself, even, illegitimately) billed as simply a way to keep the habeas corpus applications from GTMO detainees down to a manageable level, the 2005 Detainee Treatment Act included a provision that amended Section 2241 of title 28, United States Code, is amended by adding that "Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider (1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba." The alternative offered by the Act to GTMO detainees is the opportunity to contest the findings of their Combatant Status Review Tribunal which, as Joe Margulies points out in Neo-CONNED! Again, isn't even a sufficient tribunal to begin with.

The rub is at paragraph (2), which reads that 'no court, justice, or judge shall have jurisdiction to hear or consider...(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba."

It is this provision which government lawyers cite to deny GTMO detainees any right to protest their treatment based upon the highly touted McCain anti-torture legislation.

So the law prohibits torture (good), but prohibits a class of victims (GTMO detainees) from demanding that the law be enforced (bad). It relies, therefore, on U.S. officials, such as justice department lawyers, to enforce the law against DoD personnel who are committing the alleged acts of torture. Given the track record of the department under Ashcroft and Gonzales, how likely is that?

Two questions remain. (1) Was it a quid pro quo? It's hard to escape the conclusion, especially in light of the fact that the President, who up to the last minute was so implacably opposed to the anti-torture law, and who attached a signing statement indicating that he didn't feel compelled to enforce the law under certain circumstances, seemed to change his opposition to the statute overnight. Was the GTMO get-out clause part of what motivated his change of heart?

More pressing is (2) the fact that, because the statute limits actions brought by GTMO detainees "relating to any aspect of [their] detention," it would seem to be possible to charge government officials with violating the anti-torture law without necessarily challenging an aspect of their detention. In other words, a GTMO prisoner could allege that his captors are violating the McCain law by torturing him, without bring any "action" against the U.S. "relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba." The only way the government can argue what it is arguing is if it concedes, in fact, that systematic torture is an "aspect of the detention" of GTMO detainees. I.e.: do all detainees get tortured as part of their detention? Is torture and detention a "package deal" that detainees get as soon as they check in? The government would have to argue that it is part of the deal if it is exempted from challenges in court because it's an integral or essential "aspect" of the detention.

What all of this amounts to is an abuse of the very concept of law and language. As the contributors to the section of Neo-CONNED! Again entitled "One Good Scandal Deserves Another: the Snowballing of American Lawlessness" (Chapters 28 through 31, plus appendices) all demonstrate, the nation's grasp on law has been perhaps irreparably damaged by the total cynicism and insincerity of our nation's highest law-enforcement officials. International law, domestic law, the UN Charter, Geneva, the Constitution: which of these haven't been virtually shredded in the executive branch's effort to substitute sophistry and raw power for what used to be the heir to a venerable tradition going back at least to Magna Carta? And where will it end?