The Supreme Court may soon enter the legal fray over whether al-Qaida detainees should be treated as prisoners of war and be given the protections of the 1949 Geneva Convention.
By Monday, the justices will announce whether they will hear during the court’s current term (which ends in June) the case of alleged Osama bin Laden bodyguard Salim Ahmed Hamdan, now held at the Guantanamo Navy Base.
If the justices do not put the Hamdan case on their fast track, then the court of appeals here in Washington will hear oral arguments in his case on March 8.
Sooner or later, the high court is very likely to hear this case. And if it does, it will, once again, as in last summer’s decision giving al-Qaida suspects the right to challenge their detention in federal court, get back into the business of specifying rules for the conduct of the war against al-Qaida.
In a decision handed down last November, federal district Judge James Robertson ruled that a military commission, set up under an order from President Bush, could not try Hamdan, a Yemeni who was captured in Afghanistan in 2001, for acts he may have committed as an unlawful combatant.
Judge invokes Geneva Convention
"The government must convene a competent tribunal (or address a competent tribunal already convened) and seek a specific determination as to Hamdan’s status under the Geneva Convention,” ruled Robertson. “Until or unless such a tribunal decides otherwise, Hamdan has, and must be accorded, the full protections of a prisoner of war."
A “competent tribunal” would be a panel of military judges who would hold a hearing to determine whether Hamdan fit the Geneva Convention’s POW definition.
While the government has held what it calls Combatant Status Review Tribunals, to determine if someone held at Guantanamo is or is not an enemy combatant, Hamdan’s lawyers said — and Robertson agreed — that those hearings do not suffice under the Geneva guidelines.
The Defense Department set up the Status Review Tribunals to respond to the Supreme Court’s ruling last June in the case of Yaser Hamdi, an American citizen held as an illegal combatant, that a detainee must be given "a fair opportunity to rebut the Government’s factual assertions before a neutral decision-maker."
Robertson said the Bush administration’s denial of Geneva Convention protection to al-Qaida members “can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.”
He also ruled that Congress had not given Bush the power to set up the military tribunals that will conduct trials of al-Qaida detainees, and therefore those tribunals were unlawful.
Robertson's ruling cast the Guantanamo tribunal process and the status of the approximately 550 people held there into legal limbo.
'Micromanagement' by the judge?
David Rivkin, a Justice Department official in the Reagan administration who now practices law in Washington, said that in setting up the Combatant Status Review Tribunals, "the executive branch has done exactly as the Supreme Court suggested in the Hamdi decision."
Rivkin said that Robertson was practicing "micromanagement" in insisting on his interpretation of the Geneva Convention.
The Geneva accord requires that those captured in war “be treated humanely,” forbids “outrages upon personal dignity, in particular, humiliating and degrading treatment.”
The convention does not bar questioning of prisoners, but does forbid them from being “held in close confinement,” which some of the Guantanamo prisoners are now being held in.
The convention allows for trial and execution of those held in custody, but only if the sentencing is “pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The Bush administration says all detainees at Guantanamo are being treated humanely. It contends that the accused at Guantanamo have legal protections, including the right to representation by a U.S. military officer before the Status Review Tribunal and the right to counsel if they are put on trial for war crimes.
But an American Civil Liberties Union lawsuit under the Freedom of Information Act has brought to light documents written by FBI agents who visited Guantanamo and found detainees chained hand and foot, in cells with no food or water. The military is investigating these reports.
In his Senate confirmation hearing last week, attorney general nominee Alberto Gonzales explained why Bush decided against giving al-Qaida suspects Geneva protections.
Gonzales explains Geneva decision
“It would honor and reward bad conduct,” he argued. “It would actually make it more difficult … for our troops to win in our conflict against al-Qaida. It would limit our ability to solicit information from detainees. It would require us to keep detainees housed together where they could share information, they could coordinate their stories, they could plan attacks against guards.”
In their brief to the court of appeals, Justice Department lawyers argued that whether to apply the Geneva Convention to al-Qaida is a decision that “goes to the core of the president’s powers as commander in chief and is inherently one of foreign policy, an area where courts must refrain from interfering with the authority of the elected branches.”
Al-Qaida “has used operatives not in any kind of uniform to hijack civilian aircraft and to crash them into the World Trade Center, deliberately targeting civilians. … (this) terrorism is the very antithesis of the regular military warfare to which the Geneva Convention was intended to apply,” said the Justice Department brief.
The Justice Department attorneys added that Congress “has not in any way endeavored, contrary to the President, to impose the requirements of the (Geneva) Convention upon our fight against al-Qaida operatives.”
Therefore, they said, if Congress hasn’t moved to require that al-Qaida prisoners be given Geneva Convention privileges, then the courts shouldn’t.
Political effect
What’s the political impact of the Supreme Court wading into this battle? It will re-affirm the court’s role as an arbiter of how to conduct the war and underscore yet again the crucial importance of any vacancy on the court.
Bush’s adversaries see political sense in trying to land damaging blows to the president on the Geneva issue. In television ads running on cable new channels, the left-leaning Movoeon.org calls Gonzales “the man whose memos justified the use of torture in Iraq.” The ad urges viewers to “say no to torture, say no to Alberto Gonzales” by pressing the Senate to scuttle his nomination.
Gonzales said neither his memos nor any order from Bush authorized or justified torture.
An outside panel, headed by James Schlesinger, appointed by Defense Secretary Donald Rumsfeld to investigate Abu Ghraib, found that some interrogation methods used at Guantanamo on people not under Geneva protections did “migrate” to Afghanistan and Iraq. The Schlesinger panel did not find that the decision to not apply Geneva protections to al-Qaida caused abuse or torture.
Without quite saying Bush's decision to not extend Geneva protections to al-Qaida caused abuse of prisoners at Guantanamo or in Iraq, Sen. Dick Durbin, D-Ill., charged that the decision to not extend Geneva protections to al-Qaida “at least opened up a permissive environment” that made abuse possible, an assertion Gonzales rejected.
While some Democrats on the Senate Judiciary Committee argued that Geneva protections ought to apply to al-Qaida, so far none has introduced legislation to require this.
So with Congress not likely to act any time soon, the crucial decisions on the Geneva Convention and al-Qaida are going to be made by the high court.