Guantanomo Bay observations

[fernie]

Guantanamo Bay, habeas corpus and the Texan who would be king: Some legal
observations
By Richard Hoffman
5 January 2004
http://www.wsws.org

I have been following the excellent coverage by the WSWS of the barbaric
detention by the US government of the 660 odd prisoners at Guantanamo Bay,
Cuba for over two years. As a lawyer, I would like to contribute some
observations regarding the legal and historical issues to your comprehensive
reporting on this extraordinary state of affairs.

So far all legal attempts to release the Guantanamo Bay prisoners or to have
them dealt with according to law, have failed. Litigation has been brought
both in the United States and the United Kingdom, but without success.
Citizens of the UK and Australia are amongst those incarcerated at
Guantanamo Bay.

Some parallels

Whilst the conduct of the US administration in Guantanamo Bay is viewed
universally as an affront to human rights and the rule of law, it is in fact
symptomatic of a broad repudiation by erstwhile bourgeois democratic states
throughout the world to legal-constitutional principles of government.

What we are witnessing is a crisis of rulership-manifested in the juridical
sphere-of world historical significance. The Bush administration and other
governments, including the Australian government, are seeking to change the
relationship between individuals and the state-in fact, seeking to reverse
it completely-and to turn the clock back 800 years on fundamental legal
conceptions that have governed individual-state relations. The Bush
administration wants to return relations of power to the position possibly
pre the Magna Carta of 1215, and certainly pre 1640.

Arbitrary indefinite detention is now widespread. In Australia hundreds of
asylum seekers are detained and many have been incarcerated for years with
no apparent prospect of release because the government has refused to give
them visas and no state on the planet will receive them. It is truly a
nightmarish condition that not even Kafka could have imagined. Writs of
habeas corpus have been issued in various cases to seek the release of such
people on the basis that, simply put, a human being, having committed no
crime and being stateless, is entitled to his liberty.

People are being held in various countries on the pretext of
"anti-terrorism". The same arbitrary exercise of power by the executive is
holding sway. In Australia, as in the United States, laws have been
implemented that suspend the rights of the individual to legal process and
subject them to executive power with impunity. The WSWS has comprehensively
reported on these developments. What is important to understand is that
there is a unifying process at work here-whether it be detention centres set
up by the Australian government in Nauru or Papua New Guinea to detain
asylum seekers and deny them a jurisdictional connection with the Australian
legal system, or Guantanamo Bay-to deny access to the US legal system. The
underlying process is the destruction of the established legal and
constitutional framework.

 

[fernie]

II

Guantanamo Bay, the Executive and the Law

The prisoners at Guantanamo Bay are presently held in custody upon the order
and direction of the US president, George W. Bush. They are not held
according to any stated law, domestic or international. They are held, in
the language of kingly rule "at his majesty's pleasure". No charges have
been laid in two years, although apparently charges are being formulated by
Pentagon lawyers in conjunction with Paul Wolfowitz.

The US administration has decreed that the prisoners are not "prisoners of
war" and therefore not entitled to be treated according to the Geneva
Conventions. If that is so, then they are subject to no legal process apart
from arbitrary direction of the executive. That would take us back to the
dark ages, to the period prior to the Magna Carta.

Whilst the Taliban militia may not have constituted a formal army of a
sovereign state in a classical sense, a reasoned interpretation of the
Geneva laws of war would plainly extend its application to the Guantanamo
detainees. Alternatively, other international law would apply. The US
administration is completely isolated in its interpretation of the legal
position and all eminent international law jurists have insisted on the
application of the Geneva Protocols or general international law (such as
the International Covenant on Civil and Political Rights).

Putting the issue of the application of international law aside, the
fundamental question remains-are these prisoners subject to law or to the
whim of the executive? There is a lot at stake in this issue-principally the
question of whether the democratic or the authoritarian principle will be
ascendant in social relations today.

The freedom of the individual from arbitrary imprisonment was established as
a principle of law binding the king by the Magna Carta in 1215. That law is
still the law in the English-speaking world today and is embodied
doctrinally in the ancient writ of "habeas corpus" based on principles of
Roman law-which means, literally, "to have the body"-that is; to be free.

Several cases have been mounted based on the writ of habeas corpus on behalf
of several of the Guantanamo detainees. In the case of Shafiq Rasul, et al.
v. George W. Bush, et al. the US Court of Appeal for the District of
Columbia dismissed the applications that they be dealt with under US law and
released on the grounds of lack of jurisdiction. The petitioners have
appealed to the US Supreme Court and they have been granted leave to have
those appeals considered in 2004.

At the time of writing this article, the California Ninth Circuit Court of
Appeal ordered that the Guantanamo Bay detainees be provided access to
civilian lawyers. This represents a significant breach in the Bush
administration's position-but is still far short of obtaining full due
process according to law and release of the detainees. Nevertheless, the
order inherently concedes some application of law-at least the right to
counsel-to the petitioners. In an extraordinary and brazen display of
reaction the administration has announced that it will appeal the decision
granting access to civilian lawyers!

In the United Kingdom applications for release based on habeas corpus writs
have been brought in the case of Abbasi v. Secretary of State for Foreign
and Commonwealth Affairs. In this case brought in the English courts on
behalf of a British national captured by US forces in Afghanistan, the
prisoner sought an order to compel the United Kingdom Secretaries of State
to make representations on his behalf to the United States government. The
claim was based on the contention that his "fundamental human right" not to
be arbitrarily detained had been infringed because he had been denied access
to a court of law. The US District Court for the District of Columbia having
dismissed Abbasi's habeas corpus application in Rasul et al. v. Bush, his
submission was that in these circumstances, the Secretaries of State owed
him a duty under English law to take steps to redress the position. The
English court agreed with him. But the US government has not heeded any
requests made by the British government.

 

[fernie]

III

In the case, the English Court of Appeal held that the denial of access to a
court to Abassi was in conflict with the fundamental principles of English
law and of public international law. In its judgment the English Court of
Appeal said:

"What appears to us to be objectionable is that Mr Abassi should be the
subject of indefinite detention in territory over which the United States
has exclusive control with no opportunity to challenge the legitimacy of his
detention before any court or tribunal.... It is important to record that
the position may change when the appellate courts in the United States
consider the matter.... We do not find it possible to approach this claim
for judicial review other than on the basis that, in apparent contravention
of fundamental principles recognised by both jurisdictions and by
international law, Mr Abassi is at present arbitrarily detained in a legal
black hole".

Elsewhere the Court of Appeal said:

"The position of detainees at Guantanamo Bay is to be considered further by
the appellate courts in the United States. It may be that the anxiety we
have expressed will be drawn to their attention. We wish to make it clear
that we are only expressing an anxiety that we believe was felt by the court
in Rasul. As is clear from our judgement, we believe the United States
courts have the same respect for human rights as our own."

The English Law Lords may be mistaken.

Some legal history

The origin of the writ of habeas corpus, which is to be found in the Magna
Carta, was a constitution wrested from the Crown by the English nobles in
the year 1215. It was a statute that was never meant to be repealed.

Article 1 of the Magna Carta states that "all freedoms set out herein are
given to all free-men of our realm, for us and our heirs forever."

Article 29 provides that "no Freeman shall be taken, or imprisoned, or be
dispossessed of his freehold, or liberties, or free customs, or be enslaved
or exiled, but by lawful judgment of his Peers or by the law of the land."

In the classic text The History of English Law by Frederick Pollock and
Frederic Maitland (1923) the writers said, "[Magna Carta] becomes, and
rightly becomes a sacred text, the nearest approach to an irrepealable
'fundamental statute' that England has ever had.... For in brief it means
this, that the King is and shall be below the law."

It was in the sixteenth century that the writ of habeas corpus first began
to be used consistently as a means of testing the validity of executive
committals to imprisonment and in the seventeenth century, in the struggle
between the Crown and the emerging bourgeoisie, that its use assumed a
revolutionary dimension.

In Darnel's case in 1627, King Charles I (of the Stuart dynasty) had
imprisoned five knights as a result of their refusal to contribute to repay
a forced loan he had taken out. The knights sought their freedom by issue of
writs of habeas corpus and in response the king simply detained them per
speciale mandatum domini Regis. In the case, the court ruled in favour of
the king but in retaliation the parliament passed the Habeas Corpus Act in
1640 to reverse that decision and curtail the power of arbitrary executive
detention. The Habeas Corpus Act of 1640 provided that "any person
imprisoned by Order of the King or Council should have habeas corpus and be
brought before the court without delay with the cause of imprisonment
shown."

In 1679, a second Habeas Corpus Act was passed which made it clear that the
territorial scope of the protections afforded by habeas corpus-the guarantee
against arbitrary detention-was intended to be broad. The preamble described
the act as "An Act for the better securing of the liberty of the subject,
and for the prevention of imprisonment beyond the seas."

So well entrenched by the nineteenth century was the habeas corpus law
against unlawful detention that in 1816 the Parliament had to pass a special
law to deal with the case of Napoleon Bonaparte. Lawyers for Bonaparte
brought proceedings in England for his release on the grounds of unlawful
detention. The parliament passed an act entitled "An Act for the more
effectually detaining in custody Napoleon Buonaparte" (56 Geo.3.c.22
(1816)(Eng.) and was passed specifically to render lawful the continued
detention of Bonaparte, notwithstanding the end of the Napoleonic wars, by
deeming him to be a "prisoner of war" and so have no right to habeas corpus.

 

[fernie]

IV

It has long been part of the law of habeas corpus in the UK, US and
Australia that:

a. the place of incarceration is irrelevant;

b. the citizenship of the prisoner is irrelevant;

c. sovereignty over the place of confinement is unnecessary; and,

d. the only issue is whether effective control over the person detained is
exercised by an entity subject to the power of the court whose jurisdiction
is invoked (for example, an executive authority).

In 1923, the English House of Lords described the ambit and power of the
writ of habeas corpus in the following way:

"We are dealing with a writ antecedent to statute, and throwing its root
deep into the genius of our common law.... It is perhaps the most important
writ known to the constitutional law of England, affording as it does a
swift and imperative remedy in all cases of illegal restraint or
confinement. It is of immemorial antiquity, an instance of its use occurring
in the thirty-third year of Edward I. It has through the ages been jealously
maintained by courts of law as a check upon the illegal usurpation of power
by the Executive at the cost of the liege."

The extra-territorial power of the writ of habeas corpus that prevents
attempts to subvert the jurisdiction of the courts (such as the detention at
Guantanamo Bay) has been at the heart of Anglo-American law for centuries.
As indicated, the second Habeas Corpus Act of 1679 was specifically directed
toward detention "beyond the seas".

An example of the broad territorial reach of the writ of habeas corpus is
the case of Ex Parte Anderson (1861). In this case the English High Court
issued a writ to the sheriff of the County of York in Canada, and to the
keeper of the gaol of Toronto in that country, to bring up the body of an
American slave, John Anderson. The High Court held that irrespective of the
legislative and judicial independence of the colony the appellate English
courts had not abrogated the right to issue the writ of habeas corpus. The
court held "writs of habeas corpus have been and may be issued into all
parts of the dominions of the Crown of England, whenever a subject of the
Crown is illegally imprisoned or kept in custody.... We think that nothing
short of legislative enactment would justify us in refusing to exercise the
jurisdiction-when called upon to do so for the protection of the personal
liberty of the subject."

Significantly, as Anderson was an American slave, it is evident that the use
of the term "subject" was not equated with the status of citizenship.

US legal precedents are consistent with the law in the UK and other
commonwealth countries. In the 1950 case of Johnson v. Eisentrager the US
Supreme Court referred to the English origins of habeas corpus and the
harmony between the relevant laws of the two jurisdictions-including the
extra-territorial reach which was so central to the development of the law
in England because of its history as an imperial power exercising authority
over territories outside the United Kingdom-including territories over which
it did not assert sovereignty but over which, through its own executive
officers, it exercised power and control.

In the landmark Supreme Court case of Fay v. Noia (1963) Justice Brennan
referred to the "extraordinary prestige of the great writ in Anglo-American
jurisprudence and its Anglo-American development". In the judgement Brennan
declared:

"It is no accident that habeas corpus has time and again played a central
role in national crises, wherein the claims of order and of liberty clash
most acutely, not only in England in the seventeenth century, but also in
America from our very beginnings, and today."

Guantanamo Bay represents an attempt by the Bush regime to place itself
above the law in a manner unprecedented since the seventeenth century
crisis, which produced the English civil war and the beheading of Charles I.

 

[fernie]

V

The move to authoritarian rule

Guantanamo Bay is just one of a series of actions taken by the Bush
administration since September 11 to suspend individual rights, due process
and constitutional safeguards against abuse of state power.

Laws have been enacted such as the Homeland Security Act and the Patriot Act
which have resulted in the arbitrary arrest and detention of hundreds of
people across the US. By presidential decree branding a person an "enemy
combatant" the executive has aggregated to itself the power to suspend an
individual's constitutional rights, including the right to liberty.

Similar developments are taking place in the UK and Australia with the
enactment of so-called "anti-terrorist" legislation.

The trajectory of the Bush administration is clear. It wishes to institute a
repressive authoritarian apparatus of rule in the United States. In that
process it is abandoning even notional adherence to legal and constitutional
norms. Indeed, there is a kind of glee detectable in numerous members of the
Bush administration in their reckless assault on democratic principles and
practices. The US regime looks increasingly like a junta ruling through
extra-constitutional and "emergency" powers.

But whilst the administration and its allies in the press promote the
propaganda campaign about "the war on terror", the real reason for the
establishment of authoritarian rule becomes clearer each day. The vast
inequality that has become the central feature of social and political life
in the US is the real driving force propelling the most rapacious and
aggressive elements within the ruling class to establish forms of rule to
deal with the social revolt that they sense approaching.

As Plutarch once said, "the gravest danger to the republic is great
inequality." The spectre of fascist rule in the United States looms on the
horizon.

In many ways the history of the US Supreme Court is the history of the
United States. The decision of the Supreme Court in the Guantanamo Bay case
may mark a significant turning point in US history, and therefore, in world
history.

The rule of law is a revolutionary question

There has been an enormous outcry throughout the English-speaking world
about what the Bush administration is doing in Guantanamo Bay.

Lawyers' associations, human rights groups, eminent jurists and indeed the
liberal intelligentsia as a whole have condemned the actions of the Bush
administration and other governments. In Australia recently a retired judge
stood in a cage protesting the detention of asylum seekers. The various
administrations have thumbed their noses at this sort of protest with
complete indifference. And the fact is that these protests are utterly
impotent in the face of the onslaught against democratic rights and the rule
of law.

It is quite apparent that powerful social forces are operating on the legal
sphere and a far more weighty social force than the liberal intelligentsia
will be needed to defend the rights of the population against the state.
Today the defence of democratic rights is a revolutionary question. The
destruction of democratic rights is not just an idea pursued by reactionary
elements, it is essential for the social programme that a powerful section
of the ruling class is pursuing: the insatiable enrichment of an oligarchy
at the expense of the masses, including by means of war.

Copyright 1998-2003
World Socialist Web Site <http://www.wsws.org/>

 

[aptenodytes]

Just the link would have been sufficient, I'd think.

 

[xarir]

Wow - long article!

I think it's fair to say that this was written by someone with a decidely biased perspective. Nonetheless, the author does make valid points particularly with repsect to habeas corpus.

The author waves the Magna Carta repeatedly, but there are other interpretations of this historical landmark. Of particular note:

"Magna Carta is often thought of as the corner-stone of liberty and the chief defence against arbitrary and unjust rule in England. In fact it contains few sweeping statements of principle, but is a series of concessions wrung from the unwilling King John by his rebellious barons in 1215. However, Magna Carta established for the first time a very significant constitutional principle, namely that the power of the king could be limited by a written grant.

Source: http://www.bl.uk/collections/treasures/magna.html

Also:

"As might be expected, the text of the Magna Carta of 1215 bears many traces of haste, and is clearly the product of much bargaining and many hands. Most of its clauses deal with specific, and often long-standing, grievances rather than with general principles of law. Some of the grievances are self-explanatory: others can be understood only in the context of the feudal society in which they arose. Of a few clauses, the precise meaning is still a matter of argument.

Source: http://www.bl.uk/collections/treasures/magnatranslation.html

I think overall the article puts forth some good arguments. I would hope there will be more articles of this nature circulating, particularly in the US. I agree with the author that the principle issue is democratic vs authoritarian rule.

Putting the issue of the application of international law aside, the fundamental question remains-are these prisoners subject to law or to the whim of the executive? There is a lot at stake in this issue-principally the question of whether the democratic or the authoritarian principle will be ascendant in social relations today.

 

[CyberGoth]

just think... one phrase that will make republicans twitch...


"President Micheal Moore" [independent]

winks.

 

[Paul Waters]

I would simply like Bush et. al. be charged with Geneva Convention violations and tried in The Haig to determine their guilt or innocence.

That should separate the truth from the lies, and result in justice being done.

 

[Cinema Face]

You'll be pleased to learn that, thanks to the concerns of citizens like you, we are creating a new division of the Terrorist Retraining Program, to be called the "Liberals Accept Responsibility for Killers" program, or LARK for short.

Too funny.

 

[Cinema Face]

You bleeding hearts make me laugh. What did the Taliban do with their prisoners? Oh, I remember... They didn't take any.

 

[ocean976124]

For starters, the Tailban were not signers of the Geneva convention. I have a hard time treating someone as if they signed a treaty they never agreed to.
Secondly, Al Qaeda are not a recognized army and therefore can't really be POW's. All of the treaty's set up thus far in history have no fully addressed the captured terrorist.
Third, Guantanomo Bay is a US military base. It is subject to Military Law not Constitutional Law.

The only valid point against the Bush administration is that American citizens can be declared terrorists and held without lawyer or any constitiutional protection. That's a little scary, but we'll see how it works out in court.
Afterall, Abe Lincoln did a few unconstitutional things during the US Civil War (like ban the press from reporting northern millitary defeats and that whole empancipation proclaimation is constitutionally shakey).