Tribunal Ruling’s Wider Impact Still Unclear
For Salim Ahmed Hamdan, the Yemeni who was at the center of Thursday’s Supreme Court ruling on military tribunals at Guantanamo Bay, the future is a bit clearer: He must receive a trial with new, congressionally approved procedures.
But the landmark 5-3 decision may also have a significant impact on hundreds of other detainees at Guantanamo, as well as an unknown number picked up by U.S. forces and held in undisclosed locations around the world.
The high court’s finding that the Geneva Convention covers terrorism detainees -- from young men who claim to have been mere cooks for anti-U.S. forces to Sept. 11 plotter Khalid Shaikh Mohammed -- could lead to sweeping changes in the way they are treated, according to legal experts and advocates for those held. The ruling could give Guantanamo prisoners a day in a U.S. court, and senior Al Qaeda operatives being held as U.S. captives visits from the Red Cross.
Administration lawyers argue this kind of interpretation is too broad, insisting the decision only applies to Hamdan and a limited group at Guantanamo: the nine other detainees who have been charged with war crimes and 40 to 80 more who are in the pipeline to face similar charges.
“Certainly, this court’s decision is limited to the case before it,” argued one senior administration official who spoke on condition of anonymity in keeping with the rules of his job.
Others within the administration, however, have been more circumspect, declining to speculate on whether the Geneva Convention now applies to all detainees being held at Guantanamo and at other prisons overseas.
“That’s something we’re studying, and will be studying,” said another senior administration official.
President Bush decided in February 2002 that Al Qaeda was not covered by the Geneva Convention and that Taliban fighters did not qualify as prisoners of war. Bush also determined that a Geneva Convention provision known as Common Article 3 -- which applies to conflicts such as civil wars where the adversaries are not recognized nations -- was invalid when it came to the global war on terrorism.
In the court’s majority opinion, Justice John Paul Stevens found that Bush’s rationale was erroneous.
While Common Article 3 provides fewer safeguards than other portions of the Geneva Convention, it does prohibit the “passing of sentences” without a judgment from “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The article also holds that a humanitarian agency, such as the Red Cross, may be called to ensure that the Geneva protections are being obeyed, although the provision is not mandatory.
Officially, the Justice Department said Friday that it had yet to make a determination on just how broadly the decision would be applied.
“The administration is still in the process of reviewing the opinion to determine what impact it may have outside the Hamdan case,” said Brian Roehrkasse, a department spokesman.
The ramifications could be significant. The nearly 400 Guantanamo detainees who are not headed toward war crimes trials like Hamdan’s are subject to annual status hearings that determine whether they are still a threat or whether they are useful for intelligence purposes.
Advocates for those detainees have argued that those hearings -- which are conducted by a panel of three midlevel U.S. military officers without legal representation for the detainees -- are illegal because they do not conform to the rules of evidence and procedure that exist in normal military courts.
“This opinion is a green light for those held at Guantanamo who are not held on a military commission basis,” said Bill Goodman, legal director for the Center for Constitutional Rights, which has filed legal claims for nearly all Guantanamo detainees. “It allows them to go to court and see the evidence.”
Lawyers for these Guantanamo detainees have filed dozens of cases in federal court to force the government to defend its reasons for holding them.
These habeas corpus cases have been on hold as the Hamdan case made its way through the courts, awaiting both a determination on whether the Geneva Convention applies to them, as well as a ruling on whether habeas corpus requests from Guantanamo had been made illegal by a law passed last year.
As part of the Hamdan decision, Stevens wrote that cases filed before the 2005 law was passed were free to move forward. Goodman said he believed the ruling eventually would allow all Guantanamo detainees to have a hearing in federal courts.
Of potentially more consequence is the ruling’s impact on Al Qaeda detainees who are not being held at Guantanamo, who are believed to include Mohammed and Ramzi Binalshibh, an Al Qaeda operative involved in planning the 2001 attacks.
Harold Koh, dean of Yale Law School and a former assistant secretary of State for human rights, said the Geneva Convention wording in the decision appeared to cover all Al Qaeda prisoners -- including these “ghost detainees” widely believed held by the CIA. If so, they would come under Common Article 3’s protections, including its suggestion of visits from the Red Cross.
“Nobody should be detained in the course of a conflict who is not vetted by the Red Cross,” Koh said. “If the government is acting prudently under this ruling, they would be granting them Geneva rights.”
The Red Cross is unique in that it is specifically mentioned in the Geneva Convention as the organization responsible for independent monitoring of international rules.
The International Committee of the Red Cross has been requesting access to “ghost detainees” for several years, most recently during a May trip to Washington by its president, Jakob Kellenberger, who personally made the case to Secretary of State Condoleezza Rice and Secretary of Defense Donald H. Rumsfeld.
Spokesman Simon Schorno said the Red Cross would not comment on how the Hamdan case would affect its petition to the Bush administration, but added, “We certainly welcome any development that leads to a clarification of the future of the detainees held at Guantanamo Bay.”
Schorno said the Pentagon had allowed the Red Cross access to all detainees at Guantanamo since January 2002, and it also had visited those held at Bagram Air Base in Afghanistan. As of May, the organization said it was in contact with 560 detainees at Bagram.
Because the war in Iraq has always been covered by the Geneva Convention, the Red Cross has been given wide latitude to visit prisoners there. Between January and March of this year, the committee visited about 14,000 detainees in Iraq. Those believed held by the CIA, however, have remained off-limits.
“We still have not obtained access to an unknown number of persons captured and held by the U.S. in undisclosed locations,” Schorno said.