A week after the supreme court delivered a stinging rebuke to the Bush administration in Hamdan v. Rumsfeld, holding that the military tribunals it had fashioned to try Guantanamo detainees were illegal, I went to the base to visit my detainee-clients and to inform them joyfully of the Court's ruling. To say the least, they were unmoved. For them, nothing had changed: Their confidential legal documents had been confiscated, their blankets taken away, they still had no reading material; they continued to have no hope of seeing or talking to their families ever again, or of getting a fair hearing or trial.
And they were right to despair: The administration had already begun its pushback. Despite congratulatory whooping by many, including my own thrill at the decision, the impact of Hamdan now appears to have been all but eviscerated.
Stateside, the Hamdan decision was widely seen as a leap out of the “War on Terror” morass. The case had been brought by Salim Ahmed Hamdan, Osama bin Laden's alleged driver, protesting the legality of the military commission by which he was to be tried for war crimes. Under the commission rules, Hamdan could have been excluded from his own trial, evidence based on hearsay and torture would have been admissible, and his conviction could have been based on evidence that neither he nor his civilian lawyer ever saw.
The Supreme Court ruled these procedures unlawful because they did not comply with the Uniform Code of Military Justice -- a U.S. federal statute -- or Common Article 3 of the 1949 Geneva Conventions, and they had been created without congressional authority. Adding icing on the cake, Deputy Secretary of Defense Gordon England issued a memorandum one week later, “reminding” the military to adhere to Geneva Conventions Article 3. Apparently, the memo was issued without White House approval and much to the chagrin of Bush's retinue.
Ever nimble, the administration began its rout almost immediately. First, the White House asserted that all of its detainee policies already complied with Article 3, which prohibits “humiliating and degrading treatment.” White House Spokesman Tony Snow asserted that the military had always been treating the detainees “humanely” and that the England memo was “not really a reversal of policy.” Under this line of reasoning, the administration was in compliance with the Geneva Conventions because it believed waterboarding, the use of dogs during interrogation, extreme sleep deprivation, extended isolation, stress positions, forced nudity, and strapping hunger-striking detainees in restraint chairs for more than five hours somehow do not violate the Geneva Conventions. And even if they did, Attorney General Alberto Gonzales urged lawmakers to pass legislation, proposed by the White House, that would exempt U.S. personnel from the application of the War Crimes Act, which subjects those who violate the Conventions to prosecution.
Second, when Congress held hearings in response to Hamdan, the White House began to play its familiar game of hardball. At the end of July, the White House came out with draft legislation proposing procedures for the military commissions that, not surprisingly, are much like those that were declared illegal by the Supreme Court. The draft legislation states that it would be “impractible” to use Uniform Code procedures to try suspected terrorists because they are committed to destroying the country and abusing the legal system, and that the use of hearsay evidence from “fellow terrorists” is necessary to establish guilt.
The Supreme Court's edict in Hamdan appears to have had little effect on the executive branch -- and even less effect on the detainees. Congress has yet to respond to the White House's proposed legislation regarding the commissions, but even as Senate leaders were taking a hard line in hearings, House Republicans indicated they would be willing to simply ratify the old commission procedures. A compromise is likely, but even then it could take months for any legislation to pass, and anything falling short of the Hamdan directives will certainly be challenged by attorneys for the Guantanamo detainees, taking years to work its way through the courts.
Meanwhile, none of this will help the more than 450 detainees at Guantanamo who haven't even been charged and who may also continue to sit in prison without an end in sight. In practical terms, it is a war of attrition and is just the victory that the administration sought: detainees in prison indefinitely, without charge or trial.
Kristine A. Huskey has been representing Guantanamo detainees for more than four years. She teaches in the International Human Rights Law Clinic at American University, Washington College of Law.
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