BORDC October 5, 2006 Conference Call with Michael Ratner
Guest Speaker: Michael Ratner, President Center for Constitutional Rights
I’ve been asked to speak about the recently passed Military Commissions Act and our experience litigating cases involving the Guantánamo detainees.
We’ve been in the courts for five years on cases involving the Guantanamo detentions, torture and extraordinary renditions. We’ve been to the Supreme Court and won two times.—in both cases the court upheld the right for detainees at Guantanamo to file for habeas corpus. In the last case, decided in June 2006, the court also said that the Geneva Conventions, at least common article 3 of those conventions, applied to detainees imprisoned in the so-called war on terror. This latter point was really important as it meant that the humanitarian protections of Geneva applied---no torture, no cruel treatment and not degrading treatment.
After both victories Congress has come back and overridden the Court. We’re not happy about it. It’s frustrating. During the passage of the Military Commissions Bill we did a lot of lobbying--which is unusual for us. And we had some success. We got 48 votes to save Habeas Corpus and local advocacy was crucial is getting us there. But ultimately we lost on this issue. The vote on the larger bill, the MCA, was worse—12 Democrats joined with the Republicans.
Habeas Corpus
I should step back and talk about habeas corpus and its importance.
Habeas corpus literally means: You have the body. But what it means
for the legal system and the imprisoned is: “bring the body.”
The sheriff or warden had to bring the person before the court and
demonstrate the legal reason to the court why that person was being
held.
Habeas Corpus is a hallmark of checked power, a check on authority going back to 1215. It is also a hallmark of our constitutional democracy. And it was crucial to the Center for Constitutional Rights in the earlier Guantánamo detainee cases that we won in 2004. In those cases we won the right to habeas corpus as a statutory matter in rulings from the Supreme Court. As I said, then Congress intervened and effectively overturned the court rulings.
Under the Military Commissions Act, U.S. citizens still have a right to habeas corpus. Non-citizens do not. And that applies to any non-citizen held anywhere in the world and includes permanent residents detained and or held in the United States as enemy combatants. This ostensibly eliminates court review from about 500 outstanding cases on Guantánamo, 25 Bagram cases, the case of 1 Iraqi journalist who has been held for five months in Iraq. It would also have eliminated any court review of rendition as for example in the case involving a Canadian who was sent to Syria to be tortured under extraordinary rendition.
Enemy Combatant
The Military Commissions Act also defines “enemy combatant.”
It is an extremely broad definition: It is up to the President to
determine who is an enemy combatant and that’s all. Once the
President designates someone as an enemy combatant they can be detained
indefinitely.
While citizens can challenge their determination as an enemy combatant through habeas corpus, it can take years. Jose Padilla, a US citizen was held in Navy Brig for three years until he was finally charged with a crime. During this entire period he was trying to challenge his designation as an enemy combatant—when his case reached the Supreme Court, the administration realized it might lose and only then charged him with a crime.
Non-citizens cannot challenge their designation as enemy combatants. This included the men held at Guantánamo. Our experience has shown that about 90% of the detainees in Guantánamo were picked up by warlords and turned in for bounties and have no connection to Al-Qaeda or terrorism at all. And it has been very frustrating. Every time we undertake the case of one of these detainees and get close to bringing it to court, they just let the person go.
War Crimes:
The Military Commission Act also retroactively redefines the crimes
covered by the War Crimes Act. Treatment up to and possibly including
waterboarding, stress positions, stripping and hypothermia are no
longer crimes. Until now the War Crimes Act referenced Common Article
3 of the Geneva Conventions and made any violation of Article 3 a
war crime.
After 2001 there were a series of legal memos by now Attorney General Gonzales and others, which said that the Geneva Conventions do not apply to “enemy combatants.” But the Supreme Court decided in the Hamdan case that the Geneva Conventions do apply and that any violations of the Geneva Conventions could be prosecuted as war crimes. This could have meant that prosecutions in the future could go all the way up to senior administration officials like Rumsfeld and Gonzales---this was worrying to many officials.
But in the Military Commissions Act, Congress effectively amnestied all of these officials. They retroactively changed the War Crimes Act so that it does not include the key provisions of the Geneva Conventions or redefines them. Senator McCain compromised on the torture issue, so that the Military Commissions Bill still allows violations of Common Article 3. He gave the President the power to define war crimes. This arguably means that there is still a huge hole between treatment under US law and the Geneva Conventions. McCain says that the Military Commissions Act will outlaw water boarding. That is not clear but it is clear that it still allows what we would consider to be cruel treatment.
Military Commissions
Under the Act, detainees would be tried by Military Commissions set
up by the President. These are effectively kangaroo courts. The normal
way to try a war crime is a courts martial. These allow significantly
more due process than the new commissions. Under Bush’s original
bill, the commissions were clearly kangaroo courts. They allowed convictions
based on hearsay and evidence obtained by torture. But the Supreme
Court said: “No. You have to come close to Courts Martial.”
And Congress tried to deal with that and did better than Bush’s
commissions but the Military Commissions Act would still allow such
evidence that was coerced to be used if deemed okay by the presiding
officer of the commission. They also still deny the defendant access
to all the evidence against him. There are numerous other due process
violations with the Commissions.
Civil Suits
The Military Commissions Act says that no one detained can sue any
official of the United States government for torture. This also applies
retroactively. However I am fully familiar with this section of the
Act yet---and we are not sure how it will be interpreted.
Center for Constitutional Rights
Lobbying
I’ve been asked how the MCA affects our work. For one, we’ve
spent a lot ore time lobbying Congress than usual. Lobbying is something
we don’t usually do much of. In this we’ve been working
with many different organizations and about 500 lawyers, many of whom
have been to Guantánamo. But it has been frustrating. In the
Hamden case the court quoted Madison on tyranny to the effect that
placing the legislative and judicial power in the hands of the executive
is tyranny---sadly that is what this legislation does.
Legal work
We have several Guantánamo cases on appeal in the courts. And
we may reach the Supreme Court by next spring on the habeas issue—but
I assume it will be later and the last victory was in reality 5-4---not
a great margin.
Other challenges are being thought about for example maybe a case brought on behalf of legal permanent residents on habeas corpus. We think we’d win that, but it will take years based on the examples of Al-Mari and Padilla. But there are many of challenges we can bring, we just need strategize about what is most effective. But on the subject of legal permanent residents and undocumented workers, for example, we were contacted by one senator’s office and told that he had had a number of calls from immigration groups on the Military Commissions Act. The immigration groups were concerned specifically about the sweeps that took place after 2001 and the potential for this occurring again. Under the Act the government would legally be allowed to sweep up and anyone they wanted and detain them indefinitely without access to any court.
Question and Answer session between local activists and Michael Ratner:
Q: I understand that under the Military Commission Act the President
has to issue to issue his interpretations of the Geneva Conventions
and publish them in the Federal Register for 90.days.
A: Yes.
Q: He must issue his interpretations in the register but not his orders?
A: I am not sure about this—I think the orders are shielded. Bush does not have to make his orders on how detainees can be interrogated public—at least I think that. And I can’t believe that Bush will lay out publicly what types of treatment would violate the Geneva Conventions. It is important to note that Act specifically says that the Court is not allowed to rely on International Law or the laws of other nations regarding the definition of torture.
Q: I noticed section that 1061 of the Senate version of the Defense Appropriations Act required the president to list all of the techniques from waterboarding on down and required the President to respond within 90 days as to which were legal. But this section was struck out by the House – Senate Conference Committee.
A: Yes we’ve seen a lot of things struck out from bills in secret by conference committees. They are conducted in secret. And that is serious—it means we will still not have transparency regarding the techniques used for interrogations. Interestingly, the Army Field Manual does list all of their interrogation techniques—which apparently do not violate Geneva.
Q: Is allowing the President to define War Crimes an unconstitutional delegation of power by the legislative branch to the executive.
A: That is certainly an issue worth revisiting. But as you know the two recent appointments to the court: Alito and Roberts are strong defenders of the “Unitary Executive” theory. Hamdan was decided without Roberts. Alito was on the court , but Roberts had ruled in the Presidents favor in that case at the appeals level and so had to recluse himself. But it means that as of now 4 justices of the Supreme Court are willing to discard out constitutional system of checks and balances.
Q: Doesn’t the constitution require Congress to ratify treaties and can’t it be argued that the Military Commission Act undermined this process as regarding the Geneva Conventions?
A: Yes, but that is what Congress did by passing the Act. A later statute is considered ruling and a treaty is read in light of subsequent laws. In effect Congress exercised their ratification authority.
Q: What about World Court jurisdiction?
A: There are three types of courts other then our own to look at. The International Court of Justice at The Hague has no compulsory jurisdiction over the US—the US must consent and has not. The US has also refused to join the International Criminal Court and has made great efforts to insure that it cannot be brought before that court. But there is another third type of international jurisdiction. -- national courts of other nations. War Crimes and crimes against humanity are considered by most countries to be a matter of universal jurisdiction and the perpetrators can be brought to justice wherever found. They are considered to be enemies of all humankind.
After Abu Ghraib, we filed a case in Germany against Rumsfeld, but the court there delayed the case because the US military said it was investigating. But now that the Military Commissions Act has given an amnesty, we believe we can move that case forward and plan to do so.
With universal jurisdiction we can at least, like the Pinochet case, make them—Bush officials-- pariahs around the world.
Q: Isn’t getting standing a problem?
A: No not a problem in Europe. With universal jurisdiction, standing is not a problem. Both human rights organizations and victims can bring such suits.
Q: Habeas Corpus is a complicated legal issue and not many people understand what it means. Has anyone thought of arranging speakers to around and explain this to people at the local level?
A: BORDC is good at that. BORDC is one of the best organizations
out there on these issues. Right now BORDC is putting together lists
of law professors and military officers who publicly opposed the Military
Commissions Act and we plan to make those lists available to activists.