WHAT ROUGH BEAST? America sits of the edge

george

Only you could read that wonderful essay and conclude that Hofstadter has everythin right except who is the subject.

US Courts Abandon Guantanamo Detainees
By Jamie Fellner

March 21, 2003

The United States may have succeeded in carving out a piece of the world devoid of courts - and the fundamental rights they protect. A federal appeals court ruled this month that U.S. courts have no jurisdiction over the claims of detainees held on the U.S. military base at Guantanamo Bay, Cuba because the base in on sovereign Cuban soil.

The decision confused legal fiction with reality. The mistake may prove costly not only to the Guantanamo detainees themselves, but to the rule of law worldwide.

It is true that Guantanamo is land leased from Cuba. But a wiser court ruling would have acknowledged that Guantanamo is territory wholly under U.S. control; for all practical purposes, Cuban sovereignty is non-existent. Certainly U.S. officials would never acknowledge the jurisdiction of Cuban courts to hear claims brought by Guantanamo detainees. If the appellate decision is left standing, no court will be able to scrutinize how the U.S. treats its Guantanamo detainees.

The world will nonetheless continue watching what the United States does with its prisoners. Under international law, U.S. officials are obliged to respect the rights of persons under their effective control wherever they are. International human rights treaties the United States has ratified do not permit it to violate rights simply because the violations occur in another country. The obligation to refrain from arbitrarily detaining people, for example, does not stop at national borders. Conditioning human rights on accidents of geography would render them meaningless.

Nevertheless, the United States seems to believe the detainees at Guantanamo do not have any rights. It claims the unfettered discretion to hold without charges any non-citizen it labels as an enemy combatant for as long as it chooses. Unless the Supreme Court reverses yesterday's unfortunate decision, no court will tell it otherwise.

Yet international law, including the Geneva conventions and international human rights treaties, provide clear benchmarks for determining whether and for how long the United States can hold the Guantanamo detainees. Any disinterested review of those laws suggests at least three categories of detainees at Guantanamo are now being held unlawfully.

The first group are Taliban soldiers. As long as the war between Afghanistan and the United States continued, the Geneva Conventions permitted the United States to hold as prisoners without charges members of the Taliban government's armed forces. With that war having ended last June with the assumption of power of the Hamid Karzai government, the laws of war no longer permit the continued detention of those soldiers unless they are being prosecuted for war crimes or other offenses. They should be released and repatriated.

The second group consists of civilians who unnamed U.S. intelligence officials cited in news reports claim were sent by mistake to Guantanamo. The laws of war permit the internment of civilians in a war only upon an individualized showing their detention is necessary for imperative reasons of security. If there are indeed civilians at Guantanamo who have no connection to the Taliban or Al Qaeda and who are not being prosecuted, they too must also be released.

Finally, at least some suspected Al Qaeda members may have been brought to Guantanamo who were apprehended far from the war in Afghanistan. Six, for example, were picked up in Bosnia-Herzegovina. The laws of war do not apply to persons who were not picked up on a battlefield and who have no direct connection to an armed conflict. International human rights laws do apply - and they do not permit indefinite detention without charges or access to counsel.

At risk at Guantanamo are not only the rights of individual detainees who are being detained unlawfully. If the United States is willing to toss aside the clear mandates of international law, it sends a green light to every other country to do the same.

President Bush has repeatedly said that the war against terrorism is a war of values, a struggle to protect human dignity, human rights and the rule of law. At Guantanamo, that war is being lost.

President Bush has repeatedly said that the war against terrorism is a war of values, a struggle to protect human dignity, human rights and the rule of law. At Guantanamo, that war is being lost.

The fact that settled international law does not yet address the arcane details of this new situation, does not in any way diminish the obligation of our government to protect itself and its citizens. Dworkin chose not to address this point. Not necessarily a problem except that in drawing his conclusion that our government has wrongfully put its security absolutely above the rights of our detainees, he has failed to address a point that is crucial to his conclusion.

Among the most fundamental of all moral principles is the principle of shared humanity: that every human life has a distinct and equal inherent value. This principle is the indispensable premise of the idea of human rights, that is, the rights people have just in virtue of being human, and it is therefore an indispensable premise of an international moral order. Various international covenants like the Universal Declaration of Human Rights of the United Nations and the Geneva Conventions are statutory attempts to codify that basic moral principle into particular rules that can be made binding as a matter of domestic and international law. It may be a controversial question, as the Bush administration insists, whether its security measures violate the specific terms of any of the conventions to which the United States is a party.[13] But those measures do violate the basic principle of shared humanity that underlies them all...They violate that fundamental principle because they follow a strategy of putting American safety absolutely first, a strategy that recommends any measure that improves American security against terrorism even marginally or speculatively, or that improves the cost-efficiency or convenience of America's anti-terrorism campaign, without counting the harm or unfairness of that measure to its victims

The Bush administration assumes that if neither of the traditional systems for dealing with crime and war fully fits America's campaign against terrorism, then anything goes: we can then pursue American safety first, without constraints. But that assumption is unwarranted and unprincipled. The fact that terrorism presents new challenges and dangers does not mean that the basic moral principles and human rights that the criminal law and the laws of war try to protect have been repealed or become moot.

If I had to ask George one serious question, I'd ask him whether he considers himself thoughtful of others, and, if he does, how he could not want to apologize daily for the group he represents here -- apologize for their constant taunting, in the media, of people who disagree with them, of democratic procedures, of dissent of any kind.