Wednesday, July 5, 2006


From The Statesman
Cyber Age

Clipping the excesses of US power

ND Batra

The US Supreme Court majority ruling that President Bush exceeded his authority by establishing military tribunals for the trial of Al-Qaida detainees held in the US military base at Guantanamo Bay, Cuba, came as a rude shock to the administration that believes and has been acting on the presumption that during war time the President is above the law.
In Hamdan v Rumsfeld, the Court said not only is the American justice system applicable to the detainees but also the Geneva Conventions, of which Article 3 enjoins that detainees be tried by “a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised people.” In a sharp rebuke, Justice Breyer, who concurred with the majority, said: “Congress has not issued the executive ‘a blank check’”. Along with other detainees, Salim Hamdan ~ former driver and bodyguard of Osama bin Laden ~ who was captured in Afghanistan in 2001 and has been held in Guantanamo Bay detention facility, the plaintiff for whose appeal case the Court gave its ruling, now would be tried in more transparent court proceedings than by a secretive military tribunal.
In the wake of the 11 September terrorist attacks, the USA moved fast to “secure its liberties” by adopting draconian measures used only in war times. Some civil libertarians said at that time that President Bush had assumed dictatorial powers by issuing the executive order on 13 November 2001 that suspended the rights of enemy prisoners and non-citizens suspected of terrorism.
Captured Al-Qaida militants were to be tried in special military tribunals, where the normal rules of evidence were not applicable. “Given the danger to the safety of the USA and the nature of international terrorism,” so went the order, “it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognised in the trial of criminal cases in the United States district courts.” Trials were not open to the public or the media and could be conducted in any jurisdiction where the USA exercised control. The convicted person could be sentenced to life imprisonment or death, with no provision for appeal to a higher court.
It seemed ironic how Islamic terrorism had driven the USA closer to authoritarian regimes’ practice of speedy and summary execution of “justice”. The whole purpose of the executive order was to try captured Al-Qaida terrorists in a manner that would prevent them from taking advantages of the slowness of the American justice system. The dominant sentiment in the administration has been that the terrorists should not be allowed to enjoy the benefits of the system they so flagrantly abused. Vice-President Dick Cheney said at that time: “The basic proposition here is that somebody who comes into the USA illegally, who conducts a terrorist operation killing thousands innocent Americans… does not deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.”
Last Thursday, the Supreme Court rejected the argument and concluded that military commissions violated both US military justice system and international conventions. The prolonged detention of terrorists at Guantanamo Bay detention facility and the inhuman treatment meted out to them gave Al-Qaida a propaganda platform that has kept the Arab-Muslim world simmering with anger and disdain for the USA.
The administration argued this was not the first time that the USA reverted to this extraordinary method of dispensing justice. And that Franklin D Roosevelt too had done so. His military commission sentenced to death German marines who had sneaked in submarines to America’s shores to sabotage US military facilities in 1942; and again in 1946 when another commission sentenced to death a Japanese general for torture, rape and killings of citizens in the Philippines.
The Supreme Court upheld both the judgments. Abraham Lincoln too had allowed trials by military commissions during the Civil War. But those were different times. There is plenty of barbaric behaviour in every civilised society, but fortunately in the USA such bouts of collective insanity, for example, the internment of Japanese-Americans during WWII, do not last for long. Until 11 September 2001 the American people enjoyed more civil liberties than any other people in the world. There was no distinction between citizens and non-citizens before terrorists hit the American soil. The threshold of judicial proof, when a person suspected of terrorism is tried in a military tribunal, is lowered from “beyond a reasonable doubt” to merely “preponderance of evidence” that is required in civil disputes. Unanimous jury verdict required in criminal cases is replaced by a majority verdict by a panel of judges. In a trial by a military tribunal any kind of evidence, even if it does not meet the standards of the rules of evidence, could be used against the suspect under trial.
The right of the defendant to have access to sensitive intelligence in the possession of the prosecution, which is normally respected in trials, may be denied in a trial by a military tribunal. In short, the constitutional protections are suspended in the case of enemy prisoners suspected of terrorism under trial by a military tribunal. The Supreme Court did not question the detention of enemy prisoners. Nor did it order the release of 450 enemy prisoners being held at Guantanamo. But by asking the President to go to Congress to seek a legislative solution so that detainees are given the right to defend themselves according to the law of war and international conventions, it re-established the tripartite balance of power, which had been tilted in favour of the executive after 9/11.
As Justice Kennedy said in his concurring opinion: “Concentration of power puts personal liberty in peril of arbitrary action of officials, an incursion the Constitution’s three-part system is designed to avoid.” In one bold stroke, the US Supreme Court has dismantled the American imperial presidency and reaffirmed the rule of law, thus making the world a safer place from the excesses of American power.

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