Legislating a war crimeActing with virtually no debate or warning, the US Senate on Thursday passed, in the form of an amendment to a military budget bill, a far-reaching measure denying so-called "enemy combatants" any right to challenge their detention in US courts.
While this reactionary piece of legislation is aimed in the first instance at the more than 500 men and boys who have been imprisoned without charges, facing torture and abuse, at the Pentagon's concentration camp in Guantanamo Bay, Cuba, it constitutes a frontal assault on basic democratic rights and the constitutional form of government in the United States itself.
The measure would turn into law the Bush administration's arrogation to itself of the power to order the arrest and imprisonment of anyone it sees fit on the sole say-so of the president as "commander-in-chief" without formally charging them or even revealing their detention and without any possible review by the courts.
It would dramatically alter the balance of power between the different branches of the US government, undermining the independence of the judiciary and denying the courts the ability to review the actions of the presidency and consider the appeals of those claiming to have been unjustly imprisoned.
Introduced by Senator Lindsey Graham (Republican, South Carolina) and passed by a Senate vote of 49 to 42, the amendment effectively strips the US courts of any jurisdiction over those detained in the so-called war against terror and overturns the extremely limited moves by the courts to review the legality of the Bush administration's actions.
The legislation would likely end up applying to all non-citizens detained by the government both outside the US and within.
The measure was approved under conditions in which the US government has come under increasing fire internationally over a flood of revelations concerning secret prisons run by the CIA in eastern Europe and elsewhere and the torture of detainees by both the intelligence agency and the US military.
As the Senate voted, prisoners in Guantanamo were continuing a protracted hunger strike to demand that they be granted conditions guaranteed by the Geneva Convention and that they be permitted a hearing in a genuine court.
Graham made it clear that his amendment is designed to ensure that the criminal abuse of these detainees continues. "It is not fair to our troops fighting in the war on terror to be sued in every court in the land by our enemies based on every possible complaint," he said.
While an attempt will reportedly be made next week in the Senate to remove the abrogation of habeas corpus from the bill, it is virtually certain that the Graham amendment would win the support of the Republican-controlled House and be signed into law by Bush.
Under international law, the Graham amendment itself constitutes a war crime. It violates the 1907 Hague treaty, which declares it a crime to "declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."
It likewise violates the Geneva Convention, which protects detainees by prohibiting "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."
The most fundamental of these guarantees--and one of the cornerstones of democratic rights worldwide--is the right to petition a court for a writ of habeas corpus.
The measure passed the Senate just three days after the US Supreme Court announced that it would rule on the constitutionality of the kangaroo-court-style military tribunals that the Pentagon has set up at Guantanamo to supposedly determine whether detainees can be released.
Not only would the amendment void this case, it would also apply retroactively to other rulings and to appeals filed on behalf of hundreds of detainees in various federal courts. Among the rulings that would be nullified is a June 2004 US Supreme Court finding in the case of Rasul v. Bush that foreign citizens accused of terrorism can challenge their detention in the US courts.
It is not a matter of the courts having served as champions of the detainees' rights. On the contrary, they have for the most part bowed to the administration's claims that the president is entitled to extraordinary powers because the US is supposedly at war, including the power to hold "enemy combatants" without charges or trial.
The courts have ignored the fact that this so-called "war on terror" has never been declared, has no defined enemy and is presented as a conflict that will continue indefinitely, making the extraordinary powers of the president essentially permanent. As for "enemy combatant," this is a term that has never been defined, outside of describing anyone the president wants detained without granting them either the legal rights of someone charged criminally or the rights granted to prisoners of war under the Geneva Convention.
Institutionalizing dictatorial methods
Nonetheless, by legislating the exclusion of the courts from any review of these police-state measures, the Senate's action represents a significant step toward the institutionalization of dictatorial forms of rule within the US.
The measure also gives the lie to another item tied to the Defense Appropriations Bill, the so-called McCain torture amendment--passed by a vote of 90 to 9--barring "cruel, inhuman, or degrading treatment or punishment" against those detained by the US government.
The Bush administration has threatened to veto the entire military funding bill if the amendment remains, while Vice President Dick Cheney has exerted political pressure on the Senate to specifically exempt the CIA from the proscription of torture so that it can continue the brutal methods it employs at a network of secret prisons scattered around the globe.
The Graham amendment turns this ban on torture into a dead letter, or rather window dressing, for continuing the brutalization of thousands of people held by the US against whom no charges much less evidence has been presented. If they have no right to seek redress in the courts, then the administration is free to do with them as it likes, including torture and extra-judicial executions, without fear of exposure.
The amendment drew sharp fire from both human rights and attorneys' groups nationwide.
The New York City Bar called the measure "precisely the wrong action at the wrong time." It noted that the Bush administration "asserting extraordinary wartime powers, has created a whole new structure, based on tenuous legal ground, to indefinitely detain any person anywhere whom the President claims to be an enemy combatant (a term for which there is still no settled definition in law), and argues that he may do so without judicial review."
The National Institute of Military Justice issued a statement declaring, "The proposed amendment would sanction unreviewable Executive detention that cannot be harmonized with our Nation's longstanding adherence to the rule of law."
And the American Civil Liberties Union warned: "By depriving all courts of jurisdiction over nearly all claims by foreign detainees held at Guantanamo Bay, the Graham amendment would eviscerate the protections of the McCain amendment and other anti-torture laws, violate the Constitution by denying the Supreme Court its role as the final authority on whether government actions are constitutional and legal and terminate nearly all court cases brought by military officers on behalf of detainees."
Once the right of habeas corpus has been abolished for foreign detainees and those whom the president declares "enemy combatants," what is to stop the Congress from passing a law declaring that no American citizen has the right to challenge his or her imprisonment?
The legal framework is being constructed for the type of state that existed in Latin America in the 1970s, when people "disappeared" to be tortured and executed in the security forces' clandestine prisons, with no one held accountable and no challenge permitted within the courts.
That such a proposal--repudiating a principle that has been part of democratic legal rights going back to the Magna Carta nearly 800 years ago--could be tacked on as an amendment to a military spending bill speaks volumes about the nature of the US government and America's ruling elite.
It is a government that operates on the basis of conspiracy and deliberate concealment of its policies from the American people. Within the financial oligarchy that dominates political life and controls both major parties, there is no significant constituency for the defense of bedrock constitutional principles.
In an atmosphere of fear and hysteria whipped up in the aftermath of the September 11, 2001, attacks--events that have yet to be fully explained to the American people--the Bush administration has rammed through sweeping attacks on democratic rights, with the full collaboration of the Democratic Party. These include the Patriot Act, giving police and intelligence agencies unprecedented powers of surveillance, search and seizure.
It has since invoked a "global war on terror" as a pretext for launching an unprovoked and illegal war against Iraq as well as for carrying out a systematic war against the US Constitution.
This drive to demolish centuries' old rights is part of an international process that has seen in just the past week the imposition of sweeping "anti-terrorism" legislation in both Britain and Australia and the declaration of a state of emergency in France.
Underlying this global process is the unprecedented polarization between a wealthy financial elite and masses of working people, whose basic democratic rights are increasingly seen by the capitalist political establishments in every country as an intolerable obstacle to immensely unpopular policies, including war and the eradication of what remains of generations' worth of social reforms.
The Graham amendment, in its attempt to enshrine into law the dirty and illegal practices that have been carried out by the Bush administration over the past four years, represents a stark warning that this process is very far advanced and is encountering no serious resistance from any section of the political establishment.
The defense of democratic rights--including the essential right of habeas corpus--is today possible only through the independent political mobilization of the working class.
By Bill Van Auken posted 14 November 05
WSWS.org
Related:
ATROCITY THREATENS TO BECOME OFFICIAL U.S. FOREIGN POLICY
The Senate amendment to the new Defense [WAR] Appropriations Act would explicitly prohibit the U.S. government from subjecting those in its custody to cruel, inhumane, or degrading treatment or punishment.
GOP Leaders to Bush: 'Your Presidency is Effectively Over'
“Stop throwing the Constitution in my face,” Bush screamed back. “It’s just a goddamned piece of paper!”
Former chaplain paints grim picture of Guantanamo Bay
KERRY O'BRIEN: Now to a first-hand and rather grim picture of life behind bars for the terrorism suspects [scapegoats and patsies to bolster support for the illegal and degrading resource wars in the Middle East] at the US prison camp at Guantanamo Bay. It's an account from an officer who served there, a former Army Muslim chaplain, Captain James Yee, one of the few people to have regular contact with Australian detainee David Hicks.
News on David Hicks:
David Hicks will be tried on scapegoat-related charges before a controversial US military rendition on November 18. The 30-year-old Australian citizen, formerly of Adelaide, would be the first Guantanamo prisoner to be tried by a military 'caught' at Guantanamo Bay.
Government must ensure justice for Hicks
The Australian Catholic Social Justice Council is calling on the Australian Government to secure real justice for Australian citizen David Hicks. The call follows a Pentagon announcement of a resumption of military commission hearings at Guantanamo Bay.
For David Hicks
In David's eyes Australia hasn't changed much, a country hidden behind a mask of another foreign nation, freely trading independence, American values, with no real identity, with pseudo autonomy, as long as the strings are attached to another nation's apron, all crystal clear except to dim-witted Australians.
a cowardly disgrace .....
Whilst US lawyers continue their fight to secure the legal and human rights of Australian citizen, David Hicks, his government has quietly reaffirmed its decision to abandon him to his fate.
87 detainees on hunger strike at Guantanamo
A hunger strike at a US detention centre [prison] for terrorism suspects [scapegoats and patsies for resource wars in the Middle East] at Guantanamo Bay in Cuba has entered its second month with 87 prisoners refusing food, a military spokesman says.
HUNGER STRIKE AT GUANTANAMO
Detainees [prisoners] at the American military prison at Guantanamo Bay in Cuba are on hunger strike against their indefinite detention, according to human rights lawyers.
All Australians deserve a fair trial
David Hicks will not receive a fair trial in Guantanamo Bay . We must demand that Foreign Minister Alexander Downer get David Hicks back here to face an Australian court:
GetUp! Stand Up! Stand Up For Your Rights!
This government is already rattled. But our work has only just begun. This morning Senator Robert Hill announced that the Government plans to roll back the Senate budget estimates process, which plays a crucial role in exposing government bungles and cover-ups.
David Hicks justice betrayed ......
AUSTRALIA/CUBA/USA: A stated belief of the Liberal Party is: "We believe in a just & humane society in which the importance of the family and the rule of law & justice is maintained."
HICKS: Not a Happy Birthday!
AUSTRALIA/CUBA/US :David Hicks, the Australian imprisoned at the US Base of Guantanamo Bay, will be 30 years old this coming Monday August 7, 2005.
Democrats make cowardly retreat on Guantanamo torture
US: Senator Richard Durbin's sniveling apology Tuesday for his remarks on US torture at the Guantanamo Bay prison camp was entirely predictable, another of the "profiles in cowardice" that the Democratic Party serves up on a regular basis.
HOSTAGES OF THE WAR ON TERROR
Over 17,000 people including minors are now imprisoned by the US as a result of the 'War on Terror'. More than 540 men and minors, including David Hicks remmain imprisoned in Guantanamo Bay.
Hicks 'should be an Australian'
Australian David Hicks should have already been returned to Australia instead of being exploited by the US and Australian authorities.
WAR ON TERROR, WAR ON HUMAN RIGHTS: AMNESTY
The Canterbury-Bankstown Peace Group & the Justice for Hicks & Habib Campaign welcome the statement by Amnesty International Secretary General Irene Khan, condemning the US Administration for condoning torture and the suppression of 'human rights' in their 'war on terror'.
UN Dialogue among Civilizations
This roundtable is a contribution to the UN Dialogue among Civilizations project that began in September 2000. At the first round table debate on Dialogue among Civilizations, Kofi Annan, Secretary General of the UN stated that, cultural diversity - in his opinion - is not only the basis for the Dialogue among Civilizations, but also the reality that makes dialogue necessary, since the perception of diversity as a threat is the very seed of war. [The role of religion in creating a culture of peace and moving on from a culture of fear.]
Torture not acceptable on anyone: Community!
Australia: A former chairman of the National Crime Authority has spoken out in favour of torture for John HoWARd and the Neo-Cons no doubt, saying it should be used against terrorists and in domestic criminal situations but not against QC's?
Torture can never be justified
I am forwarding the following statement issued by AMCRAN in regards to a paper: "Not Enough (Official) Torture in the World? The Circumstances in which Torture is Morally Justifiable" written by Professor Mirko Bagaric, Head of Deakin Law School & Julie Clarke, Lecturer, Deakin Law School, in which they justify torture.
Torture okay: propaganda paper
Mean in Black John HoWARd and Pastor Peter Costello with Professor Mirko Bagaric, and fellow Deakin lecturer Julie Clarke, torture okay for them. Question?
Association for the Prevention of Torture
What needs to be done now? All States Parties to the UN Convention against Torture should seriously consider ratifying the OPCAT as soon as possible. National Institutions and others promoting the human rights of people deprived of their liberty need to be informed of their potential role as national preventive mechanisms under the OPCAT.
CIA defends terror suspect transfers?
Suspected terrorists [scapegoats for the Coalition of the Killings's resource wars in the Middle East] in US custody have been transferred to third countries for the past 20 years, CIA director Porter Goss told the US Senate armed services committee.
Pentagon chiefs cleared over prisoner abuse?
US: The Pentagon has cleared itself of any high-level responsibility for the abuse of detainees in Iraq, Afghanistan and Guantanamo Bay because it was the guard dogs that initiated the torture all along.
USA - FEELING THE HEAT FROM INTERNATIONAL FIRE:
It seems the United States of America (The World Watchdog) is dictating and practising double-standards --- a unique law for America and another set of laws for all other countries.
Guantanamo challenge puts off Hicks trial
Australian [scapegoat] suspect David Hicks's 'military trial'?, has been further delayed due to the postponement of a separate legal challenge to the US's legal process for Guantanamo Bay detainees?
Guantanamo guards blinded prisoner: lawyer
UK/CUBA: British permanent resident detained at the US camp for terrorism suspects [scapegoats] in Guantanamo Bay was blinded in one eye following an assault by guards, his lawyer says.
Amnesty slams Govt position on US trial system
Amnesty International has described as "absurd", the Federal Government's continued support for the United States military commission that will try Australian detainee [scapegoat] David Hicks on terrorism allegations.
US judge orders CIA release Guantanamo records
A US federal judge has ordered the CIA to release records regarding the treatment of prisoners detained in Guantanamo Bay and other facilities in the "war on terror" to a civil rights groups.
Hicks lawyer welcomes Guantanamo ruling
Stephen Kenny, the lawyer representing the family of Guantanamo Bay detainee David Hicks, has welcomed a US court ruling that military commissions set up to try detainees at Guantanamo Bay are unconstitutional.
Australia: a presumption of guilt......
KAREN PERCY: Two of Australia's leading barristers have seized on the return of Guantanamo Bay detainee, Mamdouh Habib, to launch an unprecedented attack on the Federal Attorney General, Philip Ruddock.
Aust Community criticises Govt for 'crimes'!
Australia: The Law Council of Australia is warning that the Federal Government must learn from its mistakes over Guantanamo Bay? Now that's a mistake!
Australian Govt Guilty of Crimes: Community
Australia: The community says federal fascists who allowed the torture of its citizenry including Mamdouh Habib may be arrested when the United Nations War Crimes Tribunal address the War Crimes Indictment set out by the community.
US judge dismisses? Guantanamo legal challenge
A US federal judge has dismissed the cases of seven Guantanamo Bay prisoners who sought to challenge the lawfulness of their continued detention?
US 'landlord' slams! Guantanamo 'law violations'
Cuba has demanded that the United States cease its "criminal conduct" in abusing prisoners held at the base it illegally occupies on Cuba's south-eastern tip, saying procedures at Guantanamo violate international law.
Concern over ramifications of Hicks FOI failure
There are claims that a decision by the Administrative Appeals Tribunal will give some countries the opportunity to refuse diplomatic aid to detained Australians.
FBI emails reveal Guantanamo abuse
In memos over a two year period FBI agents said they witnessed the use of torture techniques, which included the use of dogs, prisoners being shackled to the floor in foetal positions for up to 24 hours, left without food and water, left to defecate upon themselves.
Hicks alleges Guantanamo abuse: report
Guantanamo Bay prisoner David Hicks has reportedly claimed that prisoners at the US run prison camp have been beaten while blindfolded and handcuffed, terrorised by attack dogs, and forced to take drugs.
US lawyer wants inquiry into Hicks trial process
The lawyer defending Australian terror suspect [scapegoat for resource wars] David Hicks has called for an inquiry into whether the military commission hearing the case meets legal standards.
Australia Sells Its Citizens Short
Australian citizens, Mamdouth Habib and David Hicks have been illegally incarcerated in the Guantanamo Bay facility established by the US military as part of the War on Terror.
Downer won't press US for 'torture' report?
The Australian Government says it has tried and failed so far to get a copy of a report by the International Red Cross which claims psychological and physical coercion of detainees at Guantanamo Bay in Cuba?
UK minister criticises US over Guantanamo!
UK: Washington's policy on the legal status of detainees at the Guantanamo Bay prison camp in Cuba is unacceptable, a senior British minister said.
FBI emails reveal Guantanamo abuse
In memos over a two year period FBI agents said they witnessed the use of torture techniques, which included the use of dogs, prisoners being shackled to the floor in foetal positions for up to 24 hours, left without food and water, left to defecate upon themselves.
Lawyers hail 'unlawful' ruling in Guantanamo trial
Human rights groups and lawyers for Guantanamo detainees have welcomed a US federal judge's ruling which halted as unlawful the military tribunal trial of a Guantanamo prisoner accused of being Osama bin Laden's bodyguard and driver.
Hicks's lawyers seek panel decision
Lawyers for Australian Guantanamo Bay detainee David Hicks will make another attempt to dismiss charges against their client in a series of motions hearings starting in Cuba today.
Torture, the British way
Great to be British, isn't it? Time was, we were really uptight, but now we can talk about anything - sex, religion, politics. No matter how personal and complex the subject, we'll discuss it with Richard and Judy, or slap our private Polaroids of it on our websites. Which leaves me puzzled about our silence, even shyness, over this whole torture thing.
US secretly moved prisoners out of Iraq for questioning: report
The CIA has secretly transferred detainees out of Iraq for interrogation after asking the US Justice Department to write a memo justifying the practice, which violates the Geneva Conventions.
Pentagon dumps Guantanamo tribunal officers
The Pentagon has dumped three members of a military tribunal that will hear the trials of Guantanamo prisoners, including Australian David Hicks, but kept the presiding officer despite challenges to his impartiality.
Guantanamo detainees win right for private meetings
In a defeat for the US Government, a federal judge has ruled that three prisoners held at the naval base at Guantanamo Bay in Cuba can meet with their attorneys in private. In a defeat.
Lawyers complain about Guantanamo trials
US: Lawyers for 63 detainees at the US detention camp at Guantanamo Bay, Cuba have complained before a US federal court at the slow pace their cases are being handled by authorities.
Judge orders US to release Guantanamo records
The United States Government must release documents within 30 days relating to the treatment of prisoners held at American overseas detention centres, including Guantanamo Bay and Iraq's Abu Ghraib prison, a US federal judge ordered.
Bush team 'knew of abuse' at Guantanamo
Evidence of prisoner abuse and possible war crimes at Guantanamo Bay reached the highest levels of the Bush administration as early as autumn 2002, but Donald Rumsfeld, the defence secretary, chose to do nothing about it, according to a new investigation.
Hicks, Habib denied a fair go: Amnesty
The secretary-general of Amnesty International has criticised the Federal Government's treatment of the two Australians detained at Guantanamo Bay.
Govt's Hicks concerns an 'election stunt', says Brown
Greens Senator Bob Brown has accused the Federal Government of an election stunt with its questions to the United States authorities about the trial of "Australian Citizen" David Hicks.
Abu Ghraib inquiry slams Aust Government
A US inquiry into the Iraqi prison abuse scandal has been highly critical of Australian, Major George O'Kane, for glossing over early warnings about the treatment of detainees.
Australian Federal Government complicity in war crimes
Complaint to Australian law officers about Australian Federal Government complicity in war crimes.
Hicks family arrives at Kangaroo Caught
Terry Hicks says he feels very emotional about seeing his son for the first time in five years.
Hicks defence team likely to gain more time
The head of the military trials planned for two Australians held at Guantanamo Bay says he believes their defence teams will be given whatever additional time they need to prepare for trial.
Hicks, Habib denied natural justice: Liberal MP
A federal Liberal MP has accused the Government of not doing enough to secure a fair trial for Guantanamo Bay detainees, David Hicks and Mamdouh Habib.
Guantanamo abuse claims prompt new inquiry calls
New claims of abuse at Guantanamo Bay Cuba have prompted fresh calls for an Australian inquiry into the treatment of detainees David Hicks and Mamdouh Habib.
Hicks movie to premiere in Adelaide
A movie about Guantanamo Bay detainee David Hicks, President versus David Hicks, by award winning filmmaker Curtis Levy will be screened in Adelaide tomorrow.
There is no justification for torture
In the weeks since the abuses at Abu Ghraib prison were revealed, evidence continues to seep out of similar mistreatment of prisoners in other US military detention centers in Iraq, Afghanistan, and Guantanamo Bay.
Guantanamo prisoners may be moved to US soil
The US authorities may move hundreds of prisoners from their controversial Guantanamo Bay detention camp in Cuba to the United States following new Supreme Court rulings, the Los Angeles Times has reported.
Pentagon names tribunal for Hicks trial
The Pentagon has named the officers who will decide the fate of David Hicks and two other Guantanamo prisoners charged by the United States in the first US military tribunals since World War II.
US terror suspects can challenge detention
The US Supreme Court has ruled that US courts have jurisdiction to hear appeals from foreign detainees held as enemy combatants in the US military base at Guantanamo Bay, Cuba.
Hicks lawyer praises Guantanamo decision
The lawyer for an Australian man detained at the Guantanamo Bay Naval Base has welcomed a US Supreme Court ruling permitting judicial appeals from foreign detainees held as enemy combatants.
Hicks and Habib in the Melting Pot
Australia: The United States has brought three criminal charges against Australian David Hicks, accusing him of conspiracy to commit war crimes, attempted murder and aiding the enemy, the Pentagon has said.
Rumsfeld had approved abuse
US Defence Secretary Donald Rumsfeld authorised hoods, the stripping of prisoners and the use of dogs to terrify inmates at Guantanamo Bay almost two years ago, documents released yesterday revealed.
How much is that doggy in the prison? Woof woof!
Did the Iraqi prisoner's get their rations while they were treated like chums?
Failure to condemn prison abuse risks lives: Kenny
The Prime Minister is morally bankrupt stay "alert and alarmed"
Prisoner's identity concealed to prevent Red Cross access
US Defence Secretary Donald Rumsfeld, acting at the request of the CIA, ordered that a suspected Iraqi insurgent leader be detained off the books to conceal his identity from the International Committee of the Red Cross (ICRC), the Pentagon has confirmed.
US has secret prisons: rights group
The United States is holding terrorism suspects in more than two dozen detention centres worldwide, about half of which operate in total secrecy, according to a new human rights report.
This won't hurt much
For some time now, I've been trying to find out where my son goes after choir practice. He simply refuses to tell me. He says it's no business of mine where he goes after choir practice and it's a free country.
