On Gitmo, It's Groundhog Day at the Supreme Court

We have been here before. In a momentous oral argument this morning, the Supreme Court will try to identify, for the third time in six years, the rights America owes detainees held as "combatants" ("enemy" or otherwise) during this war on terrorism.

The past two times the White House and Pentagon have been hauled before the court, it has not gone well: Both times the court halted executive branch practices and policies. Both times administration critics rejoiced at the idea of the judicial branch standing up to its sister branches.

But for the detainees, nothing has changed. Six years on, the detainees -- many of whom have nothing whatsoever to do with terrorism -- are still languishing in Cuba. The White House and Congress are still cutting legal corners.The Justice Department is caught in between. And the court takes forever to act. It's Groundhog Day.

There are two main reasons for this. The first is a relentless series of choices by the White House to push its terror law policies past the point of legitimacy. All of the detainees could long ago have been "processed" out of Guantanamo Bay had the administration promoted fair trial rules to be used by military commission officials. Instead, the government repeatedly has tried to skew its tribunals (in the name of national security, etc.) in favor of prosecutors. Why? My guess is that the feds realize that some detainees would be found innocent if the rules were fair. This, apparently, the feds cannot countenance.

The second reason for the lack of progress is the court's traditional role as the "reactive" branch of the government. For centuries, the justices have been loath to offer solutions to the legal problems with which they are faced. Justice Sandra Day O'Connor famously declared in 2004 that a "state of war is not a blank check" for presidential power.

But the court was unwilling to declare with equal eloquence precisely what the White House, the Defense Department and Congress could and could not actually do when it came to the detainees. It's like a game of 20 questions; the justices keep telling the other branches where they've gone wrong, but are unwilling to tell them precisely how to get it right.

Into this court-inspired ambiguity came the Military Commissions Act, a deviously cutting measure passed last December by the lame-duck, Republican-controlled Congress. The act is designed to further limit the rights of detainees (and others) to challenge their confinement in federal court. The justices may or may not receive it favorably. If they do not, the detainees will be forced to remain in limbo for another year or so. That's the way the current legal and political constellations align as 2007 turns into 2008.

What is it going to take to break this cycle (which would never be tolerated if it affected Americans instead of faceless foreign detainees)? Either a bold, decisive ruling, or a new administration with a different approach to the legal war on terror. Don't bet on the first proposition and don't hold your breath for the second. We are 13 months away from a new president, and many more moons after that from a new policy on the legal war on terror. It may not sound like long, but it's an eternity to those detainees who don't deserve their fate.

By Andrew Cohen |  December 4, 2007; 9:53 PM ET
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Sir: Let it be said: no civilized system of jurisprudence has yet to be acclaimed to be fair and honest where those accused have been denied the evidence against them, the unfettered right to an attorney and even the opportunity of that attorney to meet with them. It is said "You can indict a ham sandwich". It now appears "You can convict the sandwich" without rational trial. What's next?---chopping off hands???? This is very sad. We appear as the countries we profess to abhor.

Posted by: crafter48@netscape.com | December 5, 2007 01:21 PM

First off, Cohen's reading of international law is seriously flawed. He would be absolutely correct had these men been captured by a civilian official or on American soil. They were not. They were captured by American military personnel in a foreign combat zone, making their fate a matter of international law, not US domestic law.

In that regard, the Third Geneva Conventiona is explicitly clear on exactly who is entitled to its protections and under what circumstances. The first and primary requirement is that combatants be uniformed members of the armed forces of a state party, meaning a country that has signed and ratified the Third Geneva Convention. If a combatant is not a member of a state party's armed forces, then that person must meet 4 requirements pertaining to their conduct in combat. NB, they must meet ALL 4 requirements in order to qualify for legal POW status.

The unfortunate fact is that Taliban, Al-Qaeda, and Iraqi insurgent fighters rarely, if ever, meet ANY of these four requirements; much less all of them. Legally, this puts them in the same category as pirates on the high seas, basically without any legal rights in the international system.

Since it is well established legal prinicple around the world that a country's laws do not extend outside of that country's borders, this means that the Guantanamo detainees have no more rights than those which we choose to grant them. This was the case during the Vietnam War regarding Viet Cong guerillas. VC fighters were not part of the uniformed armed forces of a party state, nor did they adhere to the 4 requirements of non-state combatants. In this case, the US officially granted them POW status, thereby making any Viet Cong guerilla captured by US forces a prisoner of war and under Geneva protections.

The caveat here is that it required an executive order to do so, because there was an ambiguity in international law. The executive order only applied to those caught by US forces, not those caught by the NVA. So, in sum, President Bush has the discretion, as America's elected head of state, to grant POW status or not, and either would be legal under international law. He has chosen not to grant POW status to combatants in the Global War on Terror. According to the Third Geneva Convention, the detainees are not entitled to legal status as POW's, due to their conduct in combat. They have broken no US law nor committed any act in any US jurisdiction what so ever, and are therefore outside of US domestic legal jurisdiction.

The President's actions may be unpopular. They may be mean-spirited. They may be immoral. They are not illegal.

Posted by: Archimedes | December 5, 2007 08:32 PM

"In that regard, the Third Geneva Conventiona is explicitly clear on exactly who is entitled to its protections and under what circumstances."

The Third Geneva Convention is crystal clear - that interested parties cannot decide who should or should not, be entitled to its protection.

If there is any doubt or dispute, the Convention requires an independent panel, featuring none of the interested parties - to decide on status.

The U.S.A. is in breach of its treaty obligations.

Posted by: DC | December 6, 2007 10:18 AM

Correct, in cases where there is an ambiguity, which there is not. At issue isn't whether the US MUST grant Geneva rights to GWOT detainees, but whether it SHOULD grant them. In fact, states interpret their international law obligations all the time, in fact, international arbitration is ONLY used in disputes between states, usually over trade or natural resource issues.

So again, there is no issue with the US determining who is entitled to Geneva protections and who is not, when those people are in US custody. Were there to be a dispute between the US and another state, then an international review would take place. Since no other states have raised such objections, even when their nationals are in Gitmo, the US is entirely within its rights. Given the widespread unpopularity of Gitmo, and the fact that foreign nationals from Western countries have been imprisoned there, it is reasonable to conclude that there is no international law case against the US, since one most certainly would have been raised had it existed.

Posted by: Archimedes | December 7, 2007 01:21 AM

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