How can the United States expect foreign nations to obey international law in how they treat American prisoners if this country does not comply in its handling of foreign prisoners? I have heard this concern repeatedly expressed by people who have served in the military or who have loved ones that are serving or have been in military service.
Unfortunately, President Bush continues to ignore this message and now has proposed new legislation concerning Guantanamo detainees that would not comply with crucial aspects of American and international law. Indeed, President Bush's new proposals are a remarkably cynical attempt to manipulate Congress into adopting legislation that would unnecessarily compromise the rights of those detained by the federal government.
In June, the U.S. Supreme Court, in Hamdan v. Rumsfeld, held that the military commissions created by President Bush to try those detained in Guantanamo Bay, Cuba, were impermissible because they failed to comply with the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. Republican Senators Lindsey Graham, John McCain and John Warner have introduced legislation that would have military commissions more closely follow the UCMJ requirements.
But the Bush administration opposes this and still does not want to comply with the Geneva Conventions or the UCMJ provisions. To pressure Congress to adopt its approach, the Bush administration announced on Wednesday that it would transfer 18 of the most dangerous terrorist suspects from secret CIA prisons to Guantanamo for the purpose of trials in military commissions. This, then, was used to justify the need for its form of military commissions.
Congress and the American people need to see through this and insist the United States follow the letter and spirit of the law in how it treats detainees. Rather than applaud the administration for moving some prisoners from secret CIA prisons, the response must be to demand more information. There have been widespread reports of prisoners being tortured and held for long periods of time in these facilities that have operated in secret and entirely outside the law. How many individuals are still being held, and have been held, in such facilities? What are the conditions in these facilities? Have inmates been tortured?
The manipulative aspect of the president's proposal is also evident in that it contains a number of undesirable provisions that have nothing to do with the operation of the military commissions. For example, it would relax the definition of what constitutes torture compared to what is now found in federal statutes and treaties. It would prevent the Guantanamo detainees from ever raising claims based on the Geneva Conventions and international law. It would wipe out lawsuits by Guantanamo detainees that have been pending for years. The Supreme Court held that the restriction of habeas corpus in the Detainee Treatment Act did not apply to cases already in the courts. But the Bush proposal would reverse that and deny judicial review to dozens of individuals who have been litigating in the federal courts for many years.
Moreover, the Bush proposal for military commissions must be rejected as unacceptable. For example, the Bush proposal, unlike that advanced by Republican senators, would allow the government to use coerced statements against detainees and would allow detainees to be convicted based on secret evidence without even receiving a summary of it. These procedures violate the Geneva Conventions and the Uniform Code of Military Justice.
There is an easy solution for Congress: follow the Supreme Court's decision and create military commissions that fully comply with American and international law. As the Supreme Court noted, these procedures can provide both fair hearings and protect U.S. national security. All of the other provisions of the bill, not dealing with military commissions, should be deleted.
Since January 2002, the Bush administration has done everything it can to resist the rule of law with regard to the Guantanamo detainees. It has argued that the government is unconstrained by the Constitution, federal statutes or treaties in its treatment of the detainees. It has argued that no court can review its actions, no matter what it does. The Supreme Court twice has ruled against the administration, but still it persists to try and create procedures that do not meet the requirements of American and international law. Congress must reject the administration's efforts, if nothing else to help ensure that foreign nations who capture American soldiers feel obliged to provide them all of the protections assured by international law.