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MILITARY TRIBUNALS, EXECUTIVE DETENTIONS AND TORTURE

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发表于 1/17/2018 22:34:34 | 显示全部楼层 |阅读模式
    MOVING AWAY FROM THE RULE OF LAW: MILITARY TRIBUNALS, EXECUTIVE DETENTIONS AND TORTURE
                          Michael Ratner*[1]
      Most of the panelists here do not know that I have known Professor Richard Weisberg for thirty-five years. Richard and I went to college together, and I have one story that I cannot resist telling. He once came to visit me in Cleveland, Ohio, where I lived in my college years. We were driving out in the countryside of Cleveland. Richard was in the car looking outside as we passed a farmer's field. We all know Richard is really the ultimate New Yorker. He looks out at this field of growing plants, turns to me, and asks, "Michael, what's that plant?" It was corn-a field of corn. Richard had never seen a field of corn, and I guess he had never seen the musical Oklahoma either. This is still one of my favorite stories about Richard. I am also happy to see Father Drinan here, who was one of my earliest clients. I represented Father Drinan in the first challenge ever brought under the War Powers Resolution to U.S. intervention in El Salvador. Of course, he is also well known for bringing the first case that tried to open the CIA budget. We lost both cases, but that is the way it is; you must fight for what is right.
     I am also here with Art Eisenberg from the American Civil Liberties Union ("ACLU"). The ACLU and my office, the Center for Constitutional Rights, have been in the forefront of bringing cases challenging alleged government violations of the Constitution, post 9/11. The ACLU has had the lead in trying to obtain the names of the detainees jailed in the United States. Both the Center and the ACLU have filed cases challenging the closed hearings in immigration hearings. The Center has filed a major class action case with regard to detainees in the United States. We also have filed cases challenging the detentions at Guantdnamo Bay, Cuba. We at the Center are doing a great deal of post-9/11 work. We consider the government's reaction to 9/11 to be the most serious threat to liberty and freedom we have faced in many years, if ever.
     I want to address some broad themes, say a couple of things regarding military tribunals, talk for a moment about Guantdinamo and address the question of torture. There has been a slew of new laws enacted, including the Patriot Act and new regulations issued without Congress, primarily by Attorney General Ashcroft. Many of these are focused on non-citizens, as are many of the new initiatives by the FBI. The first question I always ask is whether the government has justified these new laws before it passed them. Has it shown us a reason why these new spying powers are needed? It is a necessity to investigate what went wrong on September 11 with law enforcement. Why did our intelligence agencies fail us? Did they have too much information and not share it or evaluate it properly? Were the investigations sloppy?
       The fact that the immigration service issued visas six months after 9/11 for two of the hijackers was astounding to me. In addition, so far Congress has yet to begin an inquiry into why the intelligence agencies failed us. Yet, they are passing hundreds of pages of new laws that erode many of our liberties in the name of making us safer. Are those laws necessary? It should be determined what went wrong and steps should be taken to remedy those problems; only then can we begin to think about what, if any, new powers are necessary (In November 2002, a commission was finally appointed to undertake an investigation, but by that date both the Patriot Act and the Homeland Security Act were already law.).
     A second question I have is whether we can really be made safer by building a fortress America. I do not think so. There are seventy-five hundred miles of border with Mexico and Canada. If someone wants to do harm or evil to the United States, all the laws and border guards in the world cannot stop it. There are ten thousand airplane flights a day. How can we protect all of those flights? No matter how repressive we make our government, can we stop people from carrying out acts of terrorism? I do not think there is actually a way to do that, so I think we must look at some of the broader issues. As long as the Middle East is roiling, as long as the U.S. uses military might whether in Iraq or elsewhere, and until the world becomes a more just place, we in the United States will face terror. While terror can never be eliminated, it can be lessened. However, that would mean a substantial change in U.S. practices with regard to the rest of the world. The problem is that unless people in the United States feel safer, they will continue to accept the most draconian laws in the belief that such laws will protect them. Thus, the struggle to keep liberty at home cannot be separated from what the U.S. is doing abroad. The point is that we must look beyond the building of a fortress America; it will not really provide the safety we all want.
     A third aspect of the law that bothers me a great deal is the tendency to focus on non-citizens. Now, it is true that non-citizens were involved in the hijackings, but we have had citizens involved in terrorism in this country as well. The discrimination against non-citizens by the government was brought home to me with the case of Yaser Hamdi, a U.S. citizen who was born and lived in the United States for two years. He was then raised in Saudi Arabia and later was captured by the United States in Afghanistan. The United States thought he was a non-citizen and took him down to Guantdnamo. As soon as they found out he was a citizen, Hamdi was taken to the United States. He is no longer in a cage in Guantinamo. That is the kind of distinction the press asks me about all the time. Why is this? Why are non-citizens treated one way and citizens another? That, to me, is a major part of the problem with this war on terror. All of a sudden, non-citizens have no human rights or at least less human rights than citizens. It is also self-defeating. This type of discrimination will make those communities of non-citizens fearful of going to law enforcement with information. Citizens allegedly involved in terrorism will be overlooked. I think one of the reasons we have seen so little opposition to some of these laws, apart from the fear factor I have described, is that everybody (at least citizens) can say: "it's not me, it's someone else who will be treated badly." It is the other. It is not I as a citizen; it is a non-citizen. There has also been a tendency in the government to justify these new laws by arguing that they are affecting non-citizens only.
     The last broad theme I want to mention is a combination of the war abroad and, in the administration's terms, the "war on terrorism at home," coupled with officials such as Attorney
General Ashcroft, who is utterly insensitive to the protection of civil liberties. This combination is almost fatal to our hopes for regaining lost liberty and stopping future incursions of our rights. People will accept draconian measures at home when there is a war abroad, as they did during World War II. But now we have a "war at home" as well (since we were attacked), and officials who do not really care about our rights. So those are broad themes that make me question many of the new powers that the government is acquiring.
     I want to make a few points regarding the legality of military tribunals, and then move to the discussion of Guantinamo. It had always been understood that military tribunals could try only violations of the laws of war. The order that was issued by President George W. Bush goes way beyond that. It applies to violations of the laws of war, but also states the tribunals can try violations of "other applicable laws." There is no constitutional or legal basis to do so. The second point is that the order applies to non-state actors.   By non-state actors, I mean an alleged international terrorist who comes into the United States, not on behalf of a state, and who does not have the backing of a state. I question whether it is legal or appropriate that non-state actors be tried by a military order in front of a military tribunal when it is apparent that they cannot commit violations of the laws of war, other than in a civil war situation. Therefore, it does seem to be that the order goes way beyond what law has allowed up until now. It also raises the question of whether it is necessary to do so. We have plenty of laws in this country dealing with terrorism. We have indicted the so-called twentieth hijacker, Moussaoui, under domestic and international terrorism laws. There does not seem to be a legal basis or a need for military tribunals.
     I also question whether military tribunals are legal under any circumstances, even for violations of the laws of war. The last military tribunal took place in the immediate wake of World War II. It was in the late 1940s. It was before the Geneva Conventions of 1949 were ratified by the United States. It was before the International Convention on Civil and Political Rights. Those and other human rights agreements state that trials must occur in front of "regularly constituted" tribunals. I doubt whether a military tribunal, whether it is trying a violation of the laws of war or any other violation, would be considered under either the Geneva Conventions or the International Covenant on Civil and Political Rights a "regularly constituted tribunal." Military tribunals are ad hoc and set up for a specific purpose; it is this type of tribunal that is outlawed by these treaties.
     One aspect of the military order people did not focus on was its provision allowing indefinite detentions. The order states that the president can designate persons as fitting into the category of alleged international terrorist, or as a member of Al Qaeda, or as someone who harbors them. The secretary of defense is then required to detain that person. The order goes on to say that "if" that person is tried, they are to be tried by a military tribunal. However, it does not say they must be tried. They can remain in detention, indefinitely, forever: they remain imprisoned until the President says otherwise. I consider this provision incredibly serious, particularly as the order does not permit any review of that detention decision. No court review is permitted, no habeas corpus review. The Administration has slightly modified this by saying that habeas corpus petitions could be brought on behalf of those detained in the United States. Think about what this means: the president designates someone under the order; no probable cause is necessary; he is put in a cage in Guantanamo and, according to the government, no court can review that detention. That is what the military order says. I do not think there is any reason for that. I do not think there is any reason to dispense with all legal process for testing someone's indefinite detention.
     I initially thought that the 600 or more people held in Guantanamo were imprisoned pursuant to the military order. I thought they had been designated by the president, and were held in Guantanamo on that basis. The Australian government, with regard to one of the people I represent, furnished a letter to us, based upon information from the United States that yes, these people are being held pursuant to the president's military order. However, when we got into the litigation challenging the detentions, the United States shifted its position, and now says, vaguely, that the detainees are held under the laws and usages of war. The Administration gives no specification as what those laws are and we are left guessing as to the authority for the detentions.
     A question I always get asked is why did the U.S. Government bring these people to Guantanamo. Well, there is an obvious answer to that. I was one of the lawyers who litigated the Haitian refugee cases in the early 1990s. Those refugees were brought to Guantanamo as well. We litigated the case in the Second Circuit in New York. The government attorney asserted that a U.S. court had no authority to hear cases concerning Guantanamo and that no one in Guantanamo had any due process rights under the United States Constitution. A judge on the circuit looked down at the attorney and asked-I remember the question--"You mean to say the United States is free to do whatever it wants to the refugees, to the people in Guantanamo? It can torture them, throw them in the water, treat them as it wants?" The attorney answered back approximately as follows: "Well, this court cannot tell us anything about what we can do to the refugees in Guantanamo. There is no supervision by United States courts of what we can do. We are guided by international law, but it is not for this court to review." So that is the answer as to why the detainees are there in Guantanamo. They are in Guantanamo so the United States can avoid any kind of legal process that will review the status of the treatment of the detainees. They are in Guantanamo so they can be held forever without the checks and balances that I think our Constitution requires. I do not care whether we love or hate those people, every human being is guaranteed certain fundamental rights. This includes the right to have the legality of their detention tested in some tribunal. The United States has created an offshore penal colony that might as well be on the moon.
     The second issue regarding the detainees on Guantanamo is the question of whether or not they are prisoners of war. To answer this question, it would be helpful to know who was detained and under what circumstances. We know there are some Taliban and some members of Al Qaeda. We know there were some people captured in Bosnia-Herzegovina. There is a mixture of different people. Certainly with regard to the Taliban, who were captured on the battlefield, they should be treated as prisoners of war. They appear to have been foot soldiers fighting against the Northern Alliance, and not terrorists. The position of the Red Cross and ours in the lawsuit is the same: these detainees should be treated, according to the Geneva Conventions, as prisoners of war. If the United States has any doubt about whether they are prisoners of war, then it needs to employ competent tribunals to decide whether they are prisoners or not. This is required by the Geneva Conventions. In fact, the United States has provided for these tribunals in its military regulations. But the United States has refused to use such tribunals. After an outcry from Europe, the U.S. finally said yes, the Geneva Convention applies. However, it was a publicity stunt. The United States said it applied and then did not apply it. So the detainees are imprisoned without having gone through these competent tribunals. Now it may be that once those competent tribunals hold hearings, they will determine that some or many are not to be prisoners of war. The detainees will then fit into another category or status, but-and this is important-they will have some status. They will be civilian detainees under the Fourth Geneva Convention.There is no gap between the two conventions. However, the United States just does not accept that the conventions really apply to the detainees.
     This is a very serious situation. The United States is ignoring the fundamental laws of the Geneva Conventions. It makes it difficult not only for the detainees, but for U.S. soldiers captured overseas. Other countries will argue they are justified in following the lead of the United States in ignoring the conventions. U.S. actions jeopardize the very idea of international law. Laws that have been crucial to the world order for sixty years simply are being disregarded by the United States. We took the case to an international tribunal that we thought might have jurisdiction. We went to the Inter-American Human Rights Commission of the Organization of American States. The Commission issued an order stating that people had to have some legal status and without such a status it was concerned that the rights of the detainees would not be protected. It insisted that the status had to be determined by a competent tribunal. The United States, of course, has ignored that order. It claims that the Commission has no jurisdiction over it.
     The recent release of four of the Guantanamo detainees demonstrates the importance of such tribunals. One of those released said he was 105 years old. David Rohde, a New York Times reporter described him as: "Babbling at times like a child, the partially deaf, shriveled old man was unable to answer simple questions."[2] When asked if he was angry with American soldiers he said that he did not mind because they "took my old clothes and gave me new clothes."[3] A second Afghan man said that he was ninety years old, and was described as a "wizened old man with a cane" who had been arrested in a raid on his village.[4] A third younger man said that he had been cut off from the outside world for eleven months and only received a letter from his family three days before he was to leave Guantanamo.[5] He said he was kept in his cell twenty-four hours a day with only two fifteen- minute breaks for exercise a week.[6] This third man admitted that he had fought with the Taliban, but said that he had been forced to do so.[7] After he surrendered, soldiers of the warlord, Abdul Rashid Dostum, falsely told the United States that he and nine others were officials of the Taliban.[8] His release appears to confirm the essential elements of his story.
      Some might claim these releases show that the Administration is willing to release people from Guantanamo. However, the example cuts the other way. Here were men who obviously should never have been taken to Guantanamo and yet they were imprisoned. Here were men who, had there been a hearing before some form of a tribunal, would have been freed long ago. Here were men, apparently released only because their government, a necessary ally of the United States in the war on terrorism, insisted. There are surely many more such men suffering at Guantanamo.
     These stories of the innocent, of some detainees not involved in any fighting, of detainees that were no more then lowly foot soldiers, demonstrate the importance of a legal process for determining the status of those imprisoned on Guantanamo. They demonstrate the wisdom of those who insist that the rule of law is a necessary component of human freedom. The Guantanamo situation, the situation of the detainees, is emblematic of the worst aspects of what I call the post-9/11 legal assault on our liberties.
     Finally, I want to address the comments Alan Dershowitz has made regarding the use of torture. Before discussing my legal, pragmatic, and philosophical arguments against torture, I want to tell a story. It is a true story about Jews and the Plague that takes place in the fourteenth century. It is from Norman F. Cantor's book, In the Wake of the Plague. In those times, many people believed that Jews were responsible for the Plague. On October 30, 1348, a Jew named Agimet, "after twice being 'put to torture a little,"[9] as was permitted by law, confessed to spreading the plague by poisoning wells: "'He confesses further that he put some of this poison into the public fountain of the city of Toulouse and in the wells that are near the [Mediterranean] sea."[10] He then swore on the Torah that what he told was the truth. Numerous Jews were tortured during this period and many confessed to have spread the plague by poisoning wells. This brief story encompasses why we must never, even in moments of fear and weakness, revert to the methods once employed against Jews and now employed against others. Remember, only "a little" torture elicited this lie.
     Unlike during the fourteenth century, torture is now flatly illegal, not only under our own Constitution but under international law as well. Torture violates the Convention Against Torture, its use constitutes a grave breach of the Geneva Conventions and it is a violation of the International Covenant on Civil and Political Rights. I do not think Alan would disagree with that.
     Furthermore, I believe torture is ineffective. The idea that officials know who has information is very remote. It is unlikely they can find and obtain the truth from those who will be tortured. If we look at the errors made regarding the imposition of the death penalty in this country, we can see how risky the use of torture is. Even with full court processes necessary to prosecute an alleged murderer and the fact that proof beyond a reasonable doubt is necessary for conviction, convictions of the innocent are all too common. Imagine if, as Alan suggests, all that is needed is a warrant. No matter the strictness of the warrant requirements, many innocent people will be tortured. Torture is akin to the death penalty; it has lasting effects that can never be remedied. There are torture-healing centers throughout the world that deal with torture victims. Many of these people are damaged for the rest of their lives
     Third, torture will elicit a lot of false information from many people. Agents will spend wasted time tracking down false leads. The government will issue warnings that have no basis. The Supreme Court was concerned with the false confession issue in Miranda,[11] a case that only addressed the coercive circumstances of not having a lawyer. How much more unreliable are confessions garnered as the result of torture? In sum, torture is illegal, it is ineffective, and it is clearly immoral. It harms the very nature of our democracy. It degrades us as human beings. We would no longer stand as the important example of a country that says "no" to torture, but as country that says "yes".
      I think we are at a critical juncture in this country. We are in a serious struggle to maintain our liberty. The United States' actions in regard to the Guantinamo detainees are truly frightening. The Bush Administration is openly disregarding a legal framework that is fundamental not only to defendants' rights, but the rights of us all. The struggle against executive detentions and their prohibition is the key to human liberty. It has a long history, certainly going back some 400 years to England when the right to the "Great Writ," the writ of habeas corpus, was wrested from the Crown. It is no small matter to see an administration ignore that struggle and prohibition. Hopefully, someday in the future, we will look back on the actions of the Bush Administration and see them as we now view the actions of the Roosevelt administration in establishing internment camps for the Japanese-as one of the most shameful episodes of United States history. I hope that we will come to understand that the struggle for freedom from executive tyranny is a necessity; it is a struggle we all must join.


[1]     Moving away from the Rule of Law: Military Tribunals, Executive Detentions and Torture, Ratner, Michael 24 Cardozo L. Rev. 1513 (2002-2003) [ 10 pages, 1513 to 1522 ]
* Michael Ratner is the president of the Center for Constitutional Rights in New York. He received his J.D., magna cum laude, from Columbia Law School in 1970. He and his office are intensely involved in challenging constitutional violations in the wake of 9/11. He has litigated numerous cases in the U.S. against major international human rights violators that have expanded the reach of customary international law and resulted in millions of dollars in judgments for abuse victims. He was a principal counsel in the successful suit to close the camp for HIV-positive Haitian refugees on Guantanamo Base, Cuba.
     In addition, he is the author or co-author of numerous books and articles including: The Pinochet Papers: The Case of Augusto Pinochet in Spain and Britain (Kluwer 2000); International Human Rights Litigation in U.S. Courts (Transnational Publishers Inc. 1996); How We Closed the Guantanamo HIV Camp: The Intersection of Politics and Litigation, 11 HARV. HUM. RTs. J. 187 (1998). He has received numerous awards for his work.

[2] David Rohde, Afghans Freed from Guantanamo Speak of Heat and Isolation, N.Y.
TIMES, Oct. 29, 2002, at A18.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id

[8] Id.

[9] NORMAN F. CANTOR, IN THE WAKE OF THE PLAGUE: THE BLACK DEATH AND
THE WORLD IT MADE 147 (2001).

[10] Id. at 148.

[11] See Miranda v. Arizona, 384 U.S. 436 (1966).



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