Gitmo Story

The sorry saga of Guantanamo turned a big corner last week, as Hamdan's case finally ground its' way through the Supreme Court. In 185 pages the judges said that denying America's captives the protections of America's courts is not the president's prerogative, but that of Congress. And amid the histrionics about 'activist judges' and 'robed high priests' undermining the War on Terror, that's where GOP lawmakers and the beleagured administration are mounting their counterattack. A more eloquent leader might have called it the "end of the beginning", rather than the beginning of the end. Bush got by with a flustered "to the extent that there is latitude to work with Congress… we will do so".

That the Court slapped down an executive attempt to excise captured terrorist suspects from the writ of the federal judiciary is no surprise to anyone familiar with apex courts ruling on their jurisidiction. In any case the administration got a red warning light with Hamdi's case two years back; last Friday the justices didn't even bother with new metaphors, merely recycling O'Connor's message that a 'state of war is not a blank check for the President'. Or as Andrew Sullivan put it -

the president's first task is to protect the Constitution, not violate it. He does not have, as this president argued, one accountability moment every four years. He is continually accountable to a constitution applicable to everyone.

The white noise over the separation-of-powers issue has almost submerged the court's other key finding - that detainees must receive the minimum protections provided in a wartime context by the Geneva Conventions. Since the first inmate landed at Guantanmo, the administration has argued that these people are 'unlawful combatants' who have placed themselves entirely outside the laws of war. But this term merely denotes a lack of entitlement to engage in hostilities; it does not exclude the basic protections afforded by the Conventions. The proposition that 'unlawful combatants' lack status under under the laws of war has no basis in international law, domestic law or state practice, including that of the United States.

The proper classification for a terrorist under the laws of war is that of 'civilian'. This may seem absurd and morally offensive, but consider the practical results. Civilians who directly participate in hostilities become legitimate targets. Civilians may be interned where necessary for an occupying power's security, for as long as that power deems necessary. Civilians do not qualify for POW status and so have no right to repatriation or to withhold information from their captors, subject to requirements of humane treatment imposed by domestic and international law.

In other words, treating terrorists as 'civilians' would satisfy all the justifications advanced for slotting them in the legal category - invented by the Bush administration - of 'unlawful combatant'. The fact that the administration is still digging its heels in proves that those jusitifications don't go to the core of what Guantanamo is about. As I've argued before, what they're really claiming is authority to strip non-US citizens of rights in the name of national security. Whether the individuals concerned are in fact terrorists is besides the point.

The core issue is whether people should be denied rights afforded them by both American and international law at the US executive's discretion. We're not talking about rights to freedom of movement or communication here. We're talking about fundamental human rights like freedom from torture and from an unfair trial. We don't know exactly what the people held in Camp X-Ray have done; many have been released on the US authorities' admission that they didn't merit incarceration in the first place. And even if they do, humane standards of treatment shouldn't vary with a person's character. That's the principle on which international human rights law and the American system of government are based.

It'll be a sad day for that tradition when the concept of separating powers and the presumption of innocence drown in blather about an 'existential threat' to western civilisation, as if a few thousand fanatics had the capacity to destroy the United States or any other developed country. So we should give the benefit of the doubt not to the executive, with its responsibility for national security and mountains of information about potential threats, but to the octogenarians who wrote the Supreme Court's majority judgment. As one commentator summed it up:

"They challenged the global notion that there's war and that there's law - and that war trumps law."