TOPICS : Military tribunals violate US constitution

In a major defeat for President Bush with potentially far-reaching implications for his conduct of the “war on terror”, the US Supreme Court last Thursday ruled that military tribunals established by the Pentagon to try suspected terrorists held at Guantanamo Bay, Cuba violated the US constitution.

Justice John Paul Stevens also rejected the administration’s long-held position that the Geneva Conventions did not apply to suspected Al Qaeda detainees or so-called “unlawful combatants”. In so doing, Stevens appeared also to reject the administration’s legal claims that the Authorisation for the Use of Military Force passed by Congress after the 9/11 combined with his position as commander-in-chief in wartime, gave Bush sweeping powers to ignore existing laws and treaties. The administration has relied on those claims not only to set up the tribunals and deny Geneva protections to suspected terrorists, but also to disregard laws with respect to the wire-tapping of citizens and other controversial actions in carrying out its “war on terror”.

“The Supreme Court is saying that the president can’t go and create some new legal universe where he makes the rules,” said Barbara Olshansky, the deputy legal director of the Centre for Constitutional Rights, which represents 200 of the 450 detainees of Guantanamo.

The case was brought by Salim Ahmed Hamdan, a former chauffeur of Al Qaeda leader Osama bin Laden, and one of about three dozen Guantanamo detainees who were to face trial by military commissions established by the Pentagon. Like many of the detainees, Hamdan was captured in Afgh-anistan in late 2001 and was sent to Guantanamo, which opened in early 2002. Lawyers for Hamdan, who was charged with conspiracy, argued that the commissions lacked authority to try him for two reasons: First, because conspiracy is not a violation of the law of war; and second, because the commissions’ procedures violate basic due proc-ess under US and international law, including the Geneva Conventions.

Article 3 of the Geneva Conventions provides that all detainees are legally entitled to humane

treatment “in all circumstances” and may not be subject to “cruel treatment and torture” or

“outrages upon personal dignity, in particular, humiliating and degrading treatment”.

“This holding would not only apply to the handful of Guantanamo detainees charged with crimes,” according to a statement by Human Rights Watch HRW, “but to all the detainees held by the US in the ‘global war on terror,’ including those at Guantanamo and at Bagram Air Base in Afghanistan, as well as the ‘ghost detainees’ held at secret prisons.”

In recent weeks, Bush and other top administration officials have appeared more sensitive to international demands that the Guantanamo facility, where three detainees committed suicide earlier this month, be shut down, and some observers suggested that the court’s decision may hasten that prospect. — IPS