U.S. Military Wants No Court Over Its Shoulder

[bigpoppanils]

U.S. Military Wants No Court Over Its Shoulder: Ann Woolner

Nov. 14 (Bloomberg) -- Asif Iqbal, a British citizen, traveled to Pakistan in September 2001, planning to marry in the village where his father still lived. Before he could wed, he was captured. By whom is unclear.

He wound up at the U.S. camp at Guantanamo Bay, Cuba, where he has been living in a cell for 22 months.

Like the other 650 men and boys there, Iqbal has no idea when, if ever, he will be charged with a crime, taken to court, or set free. He has no way to tell his side of the story to anyone except his jailers, much less prove innocence to a judge.

This is exactly as it should be, the Bush administration says. These people have terrorist ties or were on the wrong side in the war in Afghanistan and are ineligible for the protections that international law provides, the White House maintains.

Besides, even in peacetime, even citizens of U.S. allies, even people who have done nothing against this country, can be held without charges, without court intervention, the administration argues in court papers. All that matters is that they are not U.S. citizens and not on U.S. soil.

The case could turn on whether Guantanamo Bay, located in Cuba but under U.S. control, is U.S. soil.

But the administration's argument reaches far beyond Guantanamo Bay and the war on terrorism that created the camp there almost two years ago. Whether the military gets free, unreviewable power over citizens of other countries will say much about our national character.

No Presence, No Rights

The Bush administration says in court briefs that foreign nationals have U.S. legal rights ``only as a consequence of their presence within the United States.'' This no-presence, no-rights principle applies ``to all aliens abroad, not simply enemy aliens,'' the court papers argue, and the lower courts agreed.

What makes the Bush position all the more disturbing is it says that U.S. courts have no authority to rule even on whether they have authority over such matters.

Fortunately, the U.S. Supreme Court disagreed and said the courts, not the White House, gets to decide whether they have jurisdiction. On Monday, the Supreme Court took up two cases filed for 16 Guantanamo detainees, all citizens of U.S. allies, all asking for a chance to show they have been wrongly labeled unlawful enemy combatants.

``A, they're not combatants. B, they're not enemies. C, they're not unlawful,'' says Douglass Cassel, director of Northwestern University law school's Center for International Human Rights and an unpaid consultant in one of the cases.

Some Mistakes

Surely some are there by mistake. Locals in Afghanistan and Pakistan picked up humanitarian workers, students, farmers, taxi drivers, whomever they could find and exchanged them for bounties the U.S. was offering, according to news reports. A former Guantanamo inmate told ``60 Minutes II,'' he was ``sold.''

Quoting unnamed military sources, CBS News put the number at more than 100. The Los Angeles Times said ``dozens.''

Without determining who is innocent, this president or any future one could keep behind bars forever, or even allow the torture of, a citizen of any other country for any reason or no reason at all, as long as it happens offshore with no judge to tell it to stop.

And while there are no confirmed reports of torture at Guantanamo, the International Committee of the Red Cross has publicly worried about the effect the indefinite incarcerations have had on the detainees. There have been 32 suicide attempts, none successful, most of them in recent months.

``The open-endedness of the situation and its impact on the mental health of the population has become a major problem,'' Christophe Girod, the senior Red Cross official in Washington, told the New York Times last month after a visit to the camp.

`Beyond the Law'

``U.S. authorities have placed the internees in Guantanamo beyond the law,'' the committee complains on its Web site.

The administration says it has virtually a free hand under a 1950 Supreme Court ruling that denied court review to Germans convicted of war crimes in a U.S. military court in China. But whether that applies here is something the Supreme Court will decide.

The military doesn't want to be slowed down. Letting the courts hear ``the claims of aliens held abroad during wartime,'' the administration says in its brief, ``would directly, and perhaps gravely, interfere with the executive's conduct of the war.''

And, yet, international agreements as well as U.S. military regulations describe ways of culling the innocents from wartime captives, if only the U.S. would follow them.

The administration should follow customary international law, says Ruth Wedgwood, an international law professor at Johns Hopkins University. But she says doing that is up to the administration itself.

International Law

``The courts are not in the business of telling the president how to follow customary international law,'' says Wedgwood.

With Guantanamo, the Supreme Court has said it will decide whether it will get into that business.

The government can ``incarcerate foreign nationals who pose a danger to the nation,'' says a court brief filed by Thomas Wilner, a Washington lawyer working on behalf of 12 Kuwaiti detainees. ``But there must be some legal process for distinguishing those who are dangerous from those who have been swept up without basis.''

Asif Iqbal might be as innocent as his family says he is, or he might be a terrorist stopped in his tracks. The point is, there has got to be a way to decide which is the truth. Twenty-two months behind bars is far too long to wait for that to happen.

``Court review does not threaten our national security,'' Wilner wrote in his brief. ``It does not exalt liberty over security. It simply ensures that a balance will be drawn.''

Last Updated: November 14, 2003 11:32 EST

[covellej]

damn it these posts are annoying

[kramadas]

Originally posted by covellej

damn it these posts are annoying

On the contrary - very informative. If they annoy you, don't read them. Choose to selectively read only material that will support your mental models of what you think is reality.

[jamiroguy1]

Originally posted by raver_mania

On the contrary - very informative. If they annoy you, don't read them. Choose to selectively read only material that will support your mental models of what you think is reality.

Well done.