Top court upholds detainee rights

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Defenders of human rights praised the Supreme Court’s June 12 ruling that hundreds of detainees at the U.S. prison at Guantanamo Bay, Cuba, are entitled to a fair trial and other habeas corpus legal rights. Hundreds of those detainees have been held now for six years without criminal charges or jury trials, subjected to torture and other abuses.

The 5-4 decision, written by Justice Anthony Kennedy, sparked a sharp exchange between the Democratic and Republican presidential nominees.

Democrat Barack Obama said the court’s decision “is an important step toward reestablishing our credibility as a nation committed to the rule of law and rejecting a false choice between fighting terrorism and respecting habeas corpus.” Habeas corpus is the constitutional protection against unlawful imprisonment.

The ruling, Obama added, is “a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo … another failed policy supported by John McCain.”

McCain assailed the decision as the “worst” Supreme Court ruling he has ever seen. Earlier, McCain had expressed misgivings but said the nation would have to live with the decision. The next day, he reversed course, denouncing it sharply. Marjorie Cohn, president of the National Lawyers Guild, told the World McCain’s overnight reversal “indicates that his handlers have decided to make this decision the ‘poster child’ for his toughness in the ‘war on terror’.”

Dalia Hashad, director of Amnesty International’s Domestic Human Rights Program, said, “This decision is a victory for justice but it is dimmed by the enormous tragedy of hundreds of detainees who were tortured, held in cruel and inhuman conditions” at Guantanamo and other secret U.S. prisons. Hundreds, innocent of any crime, were quietly released and shipped home without apology or any restitution for their wrongful arrest and torture, she said.

Hashad, an attorney who served as advocate in the American Civil Liberties Union Campaign Against Racial Profiling and is a member of the Palestine Peace Project, said in a phone interview, “I am stunned that in 2008 we are debating this question. Habeas corpus is the bedrock of our democracy.”

The court’s ruling, she continued, is a “very clear pronouncement that the Bush administration is wrong in claiming that the Constitution does not apply in Guantanamo and they can create any law they want to.”

Frida Berrigan, executive director of Witness Against Torture, said the ruling demolishes the legal “architecture” used to justify Guantanamo. It should be closed down immediately, and the detainees freed or brought to trial, she said.

On June 10, Witness Against Torture members held a vigil outside the U.S. Mission to the United Nations on the second anniversary of the suicides of three Guantanamo detainees. “They had been held incommunicado, tortured and abused,” Berrigan said. “They saw suicide as the only way out. For them and many others, this decision came too late. Someone should pay, and pay dearly, for what was done to these prisoners.”

An impeachment resolution submitted to Congress this month by Rep. Dennis Kucinich (D-Ohio) cites President Bush for the illegal mass detention of detainees at Guantanamo, among other charges.

The June 12 ruling was the Supreme Court’s third decision upholding the detainees’ legal rights. Bush and the Republican-majority Congress did an end run around those decisions with the Military Commissions Act of 2006, which was authored by McCain and opposed by Obama. It established a system of military hearings at Guantanamo called “combatant status review tribunals” subject to limited oversight by the U.S. Court of Appeals in Washington. The administration, and McCain, argued that these proceedings passed legal muster because the detainees are not U.S. citizens and the tribunals would be conducted at Guantanamo, outside the jurisdiction of the Constitution.

But Justice Kennedy demolished these arguments. For all practical purposes, he wrote, the Guantanamo detention center is U.S. territory and the Constitution applies.

The tribunals rely on “secret accusations,” and deny prisoners the assistance of attorneys as well as the right to submit evidence proving their innocence, he wrote. The tribunals also lack neutrality essential to insuring the defendants the presumption of innocence.

Three days after the decision was handed down, the McClatchy newspaper chain began publishing a five-part series on the more than 750 men who are, or had been, imprisoned at Guantanamo. McClatchy sent a team of reporters to Iraq, Afghanistan and Guantanamo to interview the detainees and local officials. The headline in the Seattle Times June 15 proclaimed, “Many detainees had flimsy ties to terror.” Hundreds were entirely innocent. Of 66 Afghani men detained, most were “low-level Taliban grunts, innocent Afghan villagers or ordinary criminals,” the article reported. “At least seven had been working for the U.S.-backed Afghan government and had no ties to militants, according to Afghan local officials. In effect, many of the detainees posed no danger to the United States or its allies.”

The reporters also found that “despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners.”

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