By William Fisher | Inter Press Service
NEW YORK, Mar 16 (IPS) – Human rights activists and constitutional law experts were virtually unanimous in their condemnation of the positions taken on prisoner detention and treatment in federal court last week by President Barack Obama’s Department of Justice, which one group described as “a case of old wine in new bottles.”
While the Justice Department announced it would no longer use the term “enemy combatants” – one of the George W. Bush administration’s signature phrases – and distanced itself from Bush-era claims of unlimited presidential power, government lawyers urged the court to dismiss a lawsuit brought by four former Guantanamo detainees because “aliens held at Guantanamo do not have due process rights.”
The former detainees, who are British citizens or residents, are suing former Defence Secretary Donald Rumsfeld and several senior military officials for authorising and carrying out torture and depriving them of their religious rights while the Britons were in captivity. The case is known as Rasul v. Rumsfeld.
The government’s court brief called for a blanket ban on such lawsuits. Allowing them “for actions taken with respect to aliens during wartime,” it told the District of Columbia Circuit Court, “would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.”
Human rights advocates were quick to respond.
The Centre for Constitutional Rights, which has provided lawyers to defend many Guantanamo prisoners, said the Obama administration has “adopted almost the same standard the Bush administration used to detain people without charge.”
It called the government’s position “a case of old wine in new bottles,” adding, “It is still unlawful to hold people indefinitely without charge. The men who have been held for more than seven years by our government must be charged or released.”
Anthony Romero, head of the American Civil Liberties Union, said he found it “deeply troubling that the Justice Department continues to use an overly broad interpretation of the laws of war that would permit military detention of individuals who were picked up far from an actual battlefield or who didn’t engage in hostilities against the United States.”
“Once again,” he said, “the Obama administration has taken a half-step in the right direction. The Justice Department’s filing leaves the door open to modifying the government’s position; it is critical that the administration promptly narrow the category for individuals who can be held in military detention so that the U.S. truly comports with the laws of war and rejects the unlawful detention power of the past eight years.”
Brian J. Foley, a visiting associate professor at Boston University law school, told IPS, “The Obama administration should stop this prison programme, which is actually harmful to U.S. intelligence-gathering.”
“Imprisoning people on flimsy evidence means we are interrogating, sometimes harshly and sometimes with torture, people who are not terrorists. These people will tell interrogators anything to stop the pain. That means they give us false leads and send our investigators scurrying around like chickens with their heads cut off, chasing imaginary monsters.”
“This waste of time keeps our investigators from developing real leads. It’s a policy based on fear – ‘What if there is actually a real terrorist among the hundreds of innocents? We better not let anyone go!’ – that is counterproductive and shameful,” he said.
Jonathan Turley, an internationally recognised constitutional scholar and a professor at George Washington University law school, said, “The (Obama) administration is still arguing that it can hold these individuals without federal charges and it is still trying to quash lawsuits filed by their counsel.”
“The biggest danger,” he said, “is that it is an effort to make Obama look principled on international law before he blocks any criminal investigation of war crimes by his predecessor.”
Human Rights Watch took a similar view. Joanne Mariner, HRW’s terrorism and counterterrorism program director said, “The Obama administration’s take on detainees is essentially the Bush standard with a new name. The Obama administration’s newly issued position on Guantanamo detainees is a disappointment. Rather than rejecting the Bush administration’s ill-conceived notion of a ‘war on terror,’ the Obama administration’s position on detainees has merely tinkered with its form.”
“We urge the Obama administration to reconsider its views,” Mariner said. “The administration should be prosecuting terror suspects in the federal courts, not looking for ways to circumvent the criminal justice system.”
And Jonathan Hafetz of the American Civil Liberties Union (ACLU), who is currently defending several former Guantanamno detainees in a lawsuit against a subsidiary of the Boeing Company for its alleged involvement in their “extraordinary rendition,” told IPS:
“The new administration is interpreting the Authorisation for Use of Military Force (AUMF) largely as the Bush administration did: As giving the president broad powers to detain indefinitely individuals without charges or trial based on suspected terrorist activities.”
The Obama legal team “remains locked into the same misguided and illegal approach to fighting terrorism. The dropping of the ‘enemy combatant’ labels appears at this point more symbol than substance,” he said.
The AUMF resolution was passed by Congress on September 18, 2001, immediately following the terrorist attacks of September 11, 2001. It authorized President George W. Bush to use the U.S. Armed Forces to pursue those responsible.
But not all constitutional experts agreed with the statements of human rights groups. For example, Prof. Peter Shane of the University of Ohio law school took a somewhat more nuanced view.
He told IPS, “If the Obama administration is abandoning the position that the president has exclusive and virtually unlimited authority to guide foreign and military affairs unilaterally, that may signal a willingness to collaborate with Congress in the development of future initiatives, which, in turn, could well have a moderating impact on American adventurism abroad.”
The Rasul case has had a difficult history in U.S. courts. The U.S. Circuit Court, in a ruling in January of last year, decided that Guantanamo detainees have no constitutional rights because they are “aliens without property or presence in the U.S.” It dismissed the case.
But in December of this year, the U.S. Supreme Court agreed to review the case. The high court sent the case back to the U.S. Court of Appeals for the D.C. Circuit for further consideration.
The “further consideration” was triggered by a landmark Supreme Court decision nine months ago in a case known as “Boumediene,” which established that Guantanamo detainees do have a constitutional right to challenge their detention in federal court. It returned the Rasul case for a second look by the Circuit Court.
While President Obama has ordered the prison at Guantanamo Bay to be closed by next January, government lawyers have taken positions in several current detainee court cases that do not propose fundamental change from that taken by the Bush administration. It has also invoked the so-called “state secrets” privilege to prevent cases from ever being heard in courts, on the grounds that public disclosure would jeopardise national security.
Diane Abbott For Prime Minister
August 1, 2009Editor’s Note: Dr George Barnsby is a well-known British radical writer, an educationist, a historian and an anti-war campaigner. He has consistently upheld the banner of democratic rights, transparency in public affairs and has indefatigably defended multiculturalism. He continues to struggle against racial discrimination and the violations of human rights both in the United Kingdom and other countries. He has used The Barnsby Blog to oppose the criminal war in Iraq unleashed by two conspirators, Bush and Blair, that has resulted in the deaths of over one million Iraqis and the destruction of Iraq. Now the U.S.-led forces under the Obama administration are escalating war in Afghanistan and wreaking havoc there.
Dr Barnsby stands for justice and adherence to international law in the conduct of international relations. In his criticism of Anglo-American imperial wars in Iraq and Afghanistan, he exposes the war crimes committed by the British government headed previously by Tony Blair and at present by George Brown. Dr Barnsby’s perspective represents the fundamental values of Humanism and Socialism and his spirit that of a true Communist.
It is clear that no policy change is possible as long as a war criminal like Brown continues to head the British government. The alternative is to replace him with someone who is ready to put an end to the bloodshed of Iraqi and Afghan people and work for a multicultural Britain. One such candidate is a black British politician Diane Abbott (For her life and work, see http://en.wikipedia.org/wiki/Diane_Abbott )
Dr Barnsby has been campaigning for Abbott’s nomination so that she may take over the premiership replacing the war criminal Brown. This will also break the monopoly of power wielded by warmongers and right-wingers in the Labour Party.
I fully support Comrade Barnsby’s advocacy of Diane Abbott for the office of prime minister.
George Barnsby, The Barnsby Blog, August 1, 2009
I’ve reached the end of the line for my unilateral advocacy of Diane
black and female as Prime Minister. So I’ve emailed Diane and asked her if she would accept the position if sufficient support were forthcoming.
But I now want to put this matter to a world audience on this BLOG and COPAM the largest organisation in the world convened electronically of people who oppose the war in Iraq.
My friends in Britain, those who have always opposed the war in Iraq, I have emailed today asking why, if they oppose the war they will not support Diane for Prime Minister. The friends in question include Hugh Muir, Simon Jenkins, Nils Pratley, Martin Kettle, Michael Meacham Gisela Stuart and others I shall add from time to time.
But I am now going to pull rank as the originator of COPAM and ask my international friends such as Fidel Castro, Hugo Chavez, Evo Mores and other Socialist figures to support Diane as our Prime Minister or perhaps support her as head of the United Nations even!
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Tags:Afghan war, Anti-war, COPAM, George Barnsby, George Brown, Human rights, multiculturalism, Tony Blair, war in Iraq
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