The American judges' ruling against the Bush administration's military-tribunal plan for Guantánamo detainees is a historic moment, says Zachary Katznelson of Reprieve, which represents thirty-six clients in the camp.
On 29 June 2006, the United States Supreme Court struck a blow for the rule of law, deciding in every respect against the Bush administration in the case of Hamdan vs Rumsfeld . The court sent a clear message that President Bush's policies in Guantánamo are unacceptable. This was not just a victory for the approximately 460 prisoners left in the benighted camp it was a victory for all of us who want to see America win the war on terror.
Zachary Katznelson is senior counsel at Reprieve
Reprieve currently represents thirty-six clients at Guantánamo, including Binyam Mohamed, a long-time British resident who has been due to appear before a military commission
The case focused on Salim Ahmed Hamdan, a driver and bodyguard for Osama bin Laden, who was captured in late 2001 by militia forces in Afghanistan during the United States-led operation that overthrew the Taliban regime there. In 2002, he was transported to the Guantánamo Bay naval base on the eastern tip of Cuba. It was not until 2004 that the US government finally charged him with a single count of conspiracy to commit terrorism and put him on trial before a military commission.
President Bush argued before the Supreme Court that the Geneva conventions did not apply to Hamdan, or to anyone at Guantánamo. President Bush lost. The Supreme Court said the Geneva conventions absolutely do apply and not just to the men in Guantánamo, but to anyone imprisoned through the war on terror.
President Bush argued that the men in Guantánamo had no right to challenge their imprisonment or the military commissions in federal court. President Bush lost.
President Bush argued that he could try ten of the Guantánamo prisoners (and possibly more) in judicial proceedings with six exceptional features:
- the prisoners could not see the evidence against them
- witnesses did not have to swear the evidence they were giving was the truth
- evidence obtained through torture was admissible
- the judges could be handpicked by US defence secretary Donald Rumsfeld
- a two-thirds vote was enough to convict
- there was no right to an independent appeal.
President Bush lost.
Also on Guantánamo in openDemocracy:
David Rose, "Guantánamo: America's war on human rights" (September 2004)
Clive Stafford Smith, "Torture: an idea for our time" (August 2005)
Harold Hongju Koh, "Captured by Guantánamo" (September 2005)
Brandt Goldstein, "Storming the Supreme Court: a students' odyssey"
(September 2005 )
Brandt Goldstein, "Guantánamo: land without law" (September 2005)
Isabel Hilton, "Guantánamo: the United States's torture" (November 2005)
"Guantánamo: the inside story" Isabel Hilton interviews Clive Stafford Smith (November 2005)
Rami Khouri, "Close Guantánamo, and its mindset"
(21 June 2006)
The Supreme Court ruled that the failure to provide minimal standards capable of ensuring that only guilty people are convicted violated military law and the Geneva conventions. The court found that President Bush had operated outside the "rule of law" by establishing the commissions. As Justice Stephen Breyer in his concurring opinion: "Congress has not issued the executive a 'blank check'."
One of our clients at Reprieve, Binyam Mohamed, was scheduled to appear before a military commission. His case clearly demonstrates the flaws in the proposed system. Binyam has always maintained his innocence. Picked up in Pakistan, he was shipped by the CIA to Morocco (we have the flight logs to prove it), where he was brutalised for eighteen months. I do not use the word torture lightly, but there can be no other word to describe what Binyam went through.
Among other things, while holding Binyam in solitary confinement the entire time, the Moroccans repeatedly slashed Binyam with razor blades all over his body including his genitals. He finally confessed to whatever his interrogators wanted him to say, anything to make the excruciating pain go away. He recanted once the torture stopped, but his words are now being used against him. Any reasonable person would realise that brutalising someone until they confess makes that confession inherently unreliable. But that is all the evidence the US has against Binyam and it would have been admissible before the military commission.
So where do we go from here? President Bush has repeatedly stated in the past month that he wants to close Guantánamo down, but suggested he was waiting for the Supreme Court to rule on the legality of the military commissions. Now it has decided the case and the message is plain: the commissions are illegal because we just can't trust the result they might turn out.
The United States has held the men of Guantánamo for over four years. Surely that is enough time to gather evidence to prove their guilt if that evidence exists. The administration needs to give the men proper criminal trials, or send them home. If we are going to lock someone up for the rest of their lives, we better be damn sure we got it right.
In the fight against terror, image is often as important as substance. That is the case with Guantánamo Bay. Every day that Guantánamo Bay remains open is a day it can be used as a propaganda tool for extremists, a clear example of American duplicity. Until Guantánamo is history, we all lose.
