30/06/2006
By Patti Waldmeir and Demetri Sevastopulo The Supreme Court decision on Thursday on military commissions at Guantanamo Bay does more than raise questions about how the US will deal with the 450 prisoners at the prison. It may also have broader implications for how the Bush administration prosecutes the war on terror. In 2002, President George W. Bush declared that members of al-Qaeda were not entitled to protections under the Geneva conventions. But the Supreme Court on Tuesday appears to have disagreed with that determination. “That is the huge part of [the] ruling,” says Martin Lederman, professor of law at Georgetown Law Center and a former Justice department lawyer. “The [ruling on the legality of the] commissions are the least of it.” While the ruling only directly applies to Mr Hamdan, its reasoning could be used to challenge the treatment of prisoners beyond Guantanamo Bay. Legal experts disagree on exactly how broad the Court’s ruling on the Geneva Conventions will turn out to be, but several say that Common Article 3 of the Geneva conventions will now apply to the conflict with al-Qaeda. The article says detainees “shall in all circumstances be treated humanely”. But it also goes further in providing rights to detainees than does US legislation, sponsored by Senator John McCain, that was passed last year. “This almost certainly means that the CIA’s interrogation regime is unlawful, and indeed, that many techniques the administration has been using, such as water-boarding and hypothermia [and others] violate the War Crimes Act ]because violations of Common Article 3 are deemed war crimes],” wrote Mr Lederman. Senior government officials tried to play down these broader implications on Thursday, pointing out that the court did not say detainees could sue directly to enforce their Geneva convention rights, and noting that the ruling only applies directly to military tribunals. But Steven Shapiro, legal director of the American Civil Liberties Union, says the Court decisively dismissed the Bush administration’s contention that the al-Qaeda conflict is not the kind of war covered by the Geneva Conventions. “That holding has broad implications beyond this case,” he said. Richard Samp of the Washington Legal Foundation, which filed a brief in the Hamdan case supporting the government, said he doubted the Geneva Conventions portion of the ruling would have much impact. “Applying Common Article 3 to al-Qaeda gives that group the same status already enjoyed by the Taliban, but I am unaware of Taliban prisoners having made any effective use of that status.” The decision could also have wider ramifications for the administration’s argument that it should have unfettered ability to prosecute the war on terror, including the ability to pursue a controversial domestic wiretapping programme. Arlen Specter, the Republican chairman of the Senate judiciary committee, said the decision made it clear that President George W. Bush did not have inherent authority to create the military commissions without input from Congress, adding that the ruling could also raise questions about Mr Bush’s authority to continue the domestic wiretapping without broader Congressional authority.
SOURCE: Financial Times |
