Last Thursday night, in a development barely reported in Britain, any hope of bringing detainees at Guantanamo and in the CIA’s ‘black’ prisons into some kind of acceptable legal framework to protect their human rights suffered a grievous setback. After weeks of wrangling, Congressional opposition to Bush administration plans caved in, leaving the prisoners in a literally hopeless position.
At the heart of this story is a deal, hammered out in intensive talks between Vice-President Dick Cheney and his Republican critics, led by Senator John McCain, the former Vietcong prisoner and likely runner in the next presidential election. According to McCain, it ‘gives the President the tools he needs’. At the same time: ‘There is no doubt that the integrity and letter and spirit of the Geneva Conventions have been preserved.’ The deal does nothing of the kind.
Bush seemed to be heading for disaster in November’s Congressional elections, with detainee trials and torture an issue on which he looked vulnerable. Now, along with a broader apparent comeback, he has almost everything he wanted, with Congressional endorsement to boot. Beneath McCain’s rhetoric, the legal black hole dug since 9/11 looks deeper and darker than ever. The chances of Guantanamo’s 450-odd detainees ever getting justice have been substantially reduced.
The Cheny-McCain deal reverses two historic decisions by the Supreme Court: the 2004 ruling that gave detainees the right to bring suits in US federal courts, and last summer’s declaration that Bush’s military tribunals, with their classified evidence and testimony obtained through torture, were unlawful. Here, the court also said that Common Article 3 of the Geneva Convention, which bans torture and inhuman or degrading treatment, applied even at Guantanamo and in the CIA gulag. As a result, the CIA’s most ‘rigorous’ interrogation methods, such as ‘light’ physical contact and the notorious ‘waterboarding’, were prohibited. According to Bush before Thursday’s deal, this was a dangerous impediment to national security.
McCain’s pyrrhic victory is that under the deal, lip service to Common Article 3 remains. The problem is that the only viable method of making this effective has been removed. To work, laws need enforcement, and with detainees that means recourse to the courts, where allegations of maltreatment can be made and tested. The deal not only blocks new cases, but it will stop the several hundred pending ones in their tracks. Most detainees will also lose access to their lawyers and, hence, the principal way in which abuses such as force-feeding and alleged brutality have been exposed.
Meanwhile, it states that there is only one authority who decides which interrogation methods breach Common Article 3 – the President. Thursday’s text said he would at least publish the list of permissible techniques. By Friday, National Security Advisor Stephen Hadley was saying that some CIA methods would stay secret after all. The President’s commitment to Geneva would have to be taken on trust.
As for the military trials, here, too, the appearance of real compromise is illusory. The big concession vaunted by McCain and his allies is the acceptance that defendants will at least be told about allegations that emanate from classified sources; the tribunals will not, as Bush initially wanted, consider claims of which suspects remain unaware.
However, the difference with the ordinary rules of legal due process as practised on both sides of the Atlantic will still be immense. Confronting ‘evidence’ from unknown, secret sources, defendants will not have any opportunity to test it through cross-examination.
Neither does the deal spell out how much defendants will be told. The record from the existing ‘combatant status review tribunals’, which decide if prisoners who have not been charged with any crime should continue to be detained, suggests that they may learn very little.
After weeks of sound and fury, McCain and his cohorts caved in. Small wonder Bush sounded jubilant: ‘The agreement clears the way to do what the American people expect us to do: to capture terrorists, to detain terrorists, to question terrorists and then to try them.’ Or as White House counsel Dan Bartlett put it: ‘We proposed a more direct approach to bringing clarification. This one is more of the scenic route, but it gets us there.’
Â· David Rose is author of Guantanamo: America’s War on Human Rights, Faber
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