Opinion:

US wants speedy justice for ex-Tigers, but not for Guantanamo detainees

by Daya GAMAGE

Guantanamo Bay prison

The Asian Tribune US Bureau noted with amusement that the United States reiterated that it looks forward to a ‘speedy and transparent judicial process’ regarding ex-LTTE combatants and all other detainees held in various prisons in Sri Lanka.

The US Embassy in Colombo made this remark on May 29, according to a Sri Lankan national newspaper, in the wake of a campaign by some political activists to secure the release of LTTE suspects and the Government planning to set up three separate courts in Anuradhapura, Vavuniya and Mannar to try them.

When the newspaper concerned asked about the matter, a spokesman for the US Embassy had said that the US was only interested in the upholding of the rule of law and quick judicial process with regard to LTTE suspects, as recommended by the Lessons Learnt and Reconciliation Commission (LLRC).

The Sri Lanka media further reported that the Government has indicted 359 ex-combatants and are carrying out investigations regarding 309 others. Also, some other suspects arrested under the provisions of the Prevention of Terrorism Act have been referred to various rehabilitation centres.

Cabinet spokesman Minister Keheliya Rambukwella, reacting to the United States request for a “speedy and transparent judicial process” regarding ex-LTTE cadres said the Government had an action plan regarding these cadres and was working in accordance with it.

“You have to remember that these are hardcore terrorists we are talking about, who were taken into custody or who surrendered to the Government. Therefore, legal proceedings are taking place against these people. If some quarters are urging to speed up the process, what it implies is that it’s asking the judicial process to be silent. This is not within our system - our Constitution clearly provides for a coherent legal system and this is what we are adhering to,” he said addressing the media in Colombo.

Cabinet Minister Nimal Siripala de Silva told Parliament recently that there were no political prisoners in Sri Lanka as made out by some internal and external activists saying 359 former LTTE suspects are being detained in the country’s prisons, of which 309 have cases pending against them and added that three new High Courts would be established to prosecute the cases.

Water boarding

A detainee in Afghanistan

What was amusing to this writer who covers the political scene in the US and its connection to the Asian region and vice versa, is that due process of law has been denied to ‘enemy combatants’ taken into US custody, some incarcerated for as long as 10 years, preventing them from obtaining legal advice, denying them the right to Habeas Corpus long accepted since the promulgation of the Magna Carta in 1215, and often subjected to brutal interrogation using ‘water boarding’ - a simulated drowning technique categorised as a method of torture even by UN human rights covenants.

Minister Rambukwella went onto point out that the request by certain quarters completely ignored the procedures laid down. “There are thousands of cases regarding ex-LTTE cadres and the Attorney General’s Department has to follow these cases individually. I wonder whether what they are asking is to bypass these procedures that have been laid down. This request itself fundamentally and completely ignores the procedures and the legality of these procedures”, he said.

The Asian Tribune, in this political note, will present the status of ‘long-term’ Guantanamo ‘enemy combatants’ and the cry from many quarters, both legislative and civil society activists, to execute the ‘due process of law’ to either bring them to justice or release those who have no culpability in international terrorism.

This political note however does not endeavour to deny a sovereign State, be it the United States or Sri Lanka, the right to hold ‘enemy combatants’ in incarceration until investigations, interrogations, reports and other data are completed to execute the ‘due process of law’ to either bring them to justice or release them.

These nations have the right to protect themselves, eliminate potential terrorist threats, safeguard their sovereignty and territorial integrity.

Nevertheless, there is a stark difference between an eight to 10 years of incarceration without access to legal teams, alleged torture such as water boarding, inhuman interrogation techniques that have been exposed, denying Habeas Corpus while subverting the rule of law and holding hardcore enemy combatants, apprehended or surrendered, for less than three years for the purpose of completing investigations which help a nation to either prevent potential threats and/or draw a comprehensive strategy to eliminate a climate/atmosphere for the recurrence of such non-international terrorism threatening the nation’s sovereignty and territorial integrity.

Here, we are talking about the eight to 10 year incarceration of ‘enemy combatants’ by the United States with scant regard for the rule of law and due process of the law.

Military commissions

In 2001, President Bush issued an executive order authorising the detention of non-citizen “enemy combatants.” In January 2002, the first prisoners arrived at Guantanamo. Since then, the administration has engaged in a systematic effort to deprive these detainees of even the most basic legal rights, and strand them in permanent legal no-man’s land. A series of Supreme Court cases, Rasul v. Bush, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, undermined Bush’s strategy.

In late 2006, legal proceedings at Guantanamo came to a standstill, because Congress passed the Military Commissions Act of 2006, under intense pressure from the White House, following the Hamdan decision. The Act essentially undermines the Habeas Corpus rights of the detainees, allows the use of evidence obtained through torture, and does not come close to satisfying fundamental due process requirements.

Wikileaks Guantánamo Bay files

In April 2011, Wikileaks released thousands of pages of classified documents regarding the status of the almost 800 detainees, ranging from ages 14 to 89, that have passed through or remain at the Guantanamo Bay detention centre.

The US military dossiers, obtained by the New York Times and (London) Guardian, reveal how many prisoners were flown to Guantánamo and held captive for years on the flimsiest grounds or on the basis of lurid confessions extracted by maltreatment.

Perhaps the most damning of these documents are the corroborative evidence of the use of torture, the fact that more than 150 of the detainees were innocent, and details on the seven men that have died while in US custody. The files also contain detailed explanations of the reasons used to justify the prisoners’ detention. In several cases, the detainees were being held, not because they were dangerous, but because they were believed to have useful information.

Vincent Warren, the Executive Director of the Centre for Constitutional Rights, which represented clients in two Guantánamo Supreme Court cases and coordinates the work of hundreds of pro bono attorneys representing men detained at the prison camp in an op-ed piece written January 9 this year said:

“From its inception, Guantánamo was intended to be a legal black hole, designed to deny its prisoners the most basic human rights and due process. Most of the 779 men who have been imprisoned and abused there over the last 10 years were in the wrong place at the wrong time.

They were picked up far from any battlefield, turned over to the US for a bounty, and held long after government officials acknowledged that they were innocent of any wrongdoing. Likewise, the military commission system created to try Guantánamo detainees was invented to allow convictions based on evidence that would never be allowed in a courtroom, including hearsay and evidence obtained through torture.”

Through years of tireless work in the courts, the Centre for Constitutional Rights and pro bono attorneys across the US established that Guantánamo prisoners have a right to counsel, a right to Habeas Corpus and a right to meaningfully challenge their detention.

Though several Supreme Court rulings have confirmed that Guantánamo does not exist outside the law, Congress has blocked attempts to close the island internment camp at every turn. Provisions in the 2012 National Defence Authorization Act effectively prevent the release of 89 men who have been unanimously cleared by the CIA, FBI, NSC and Department of Defense for transfer or resettlement, and codify a system of indefinite detention.

Today, while 171 men remain imprisoned in Guantánamo without charge or trial, fear-mongering and political gamesmanship have turned Guantánamo into Obama’s forever prison. And, to date, more men have died in Guantánamo than have been tried for the suspicions that landed them there.

In a letter this January to US President Obama Kenneth Roth, Executive Director, Human Rights Watch said:

“Your National Security Strategy explicitly recognises that the United States’ “moral leadership is grounded principally in the power of [its] example.” Your National Strategy for Counter terrorism recognises the importance of adhering to US core values while fighting terrorism, including through the respect for human rights.

“As the strategy eloquently outlined, “Where terrorists offer injustice, disorder, and destruction, the United States must stand for freedom, fairness, equality, dignity, hope, and opportunity. The power and appeal of our values enables the United States to build a broad coalition to act collectively against the common threat posed by terrorists, further de-legitimising, isolating, and weakening our adversaries.”

In his speech at Harvard Law School in September 2011, counter-terrorism advisor John Brennan affirmed that the guiding principle of all US action is to “uphold the core values that define us as Americans, and that includes adhering to the rule of law.”

Human Rights Watch further reminds: “The example set by keeping Guantanamo open undermines the US government’s long-standing opposition to similar detention regimes in other countries. Over the years, the US has opposed detention practices that are inconsistent with basic principles of due process, openly criticising detentions without trial by Saudi Arabia, Pakistan, Malaysia and China. But such criticisms hold little weight when the US adopts its own indefinite detention regime.”

The Guantanamo Detainee Review Task Force recommended 48 detainees for continued detention without charge (now 46 due to the deaths of two of those detainees). On March 7, 2011, the US President issued an Executive Order for the Periodic Review of Individuals Detained at Guantanamo Bay Naval Station Pursuant to the Authorization for the Use of Military Force.

The US President’s decision to sign into law the National Defence Authorization Act (NDAA) and thereby potentially expand indefinite detention without trial, and his acceptance of indefinite detention without trial for certain detainees already at Guantanamo, as well as detainees in Afghanistan is being heavily criticised by rights organisations.

Says Human Rights Watch to the Obama administration: “We urge you to improve the process under which the detainees in Guantanamo or Afghanistan can challenge their detention. The Executive Order did provide for some additional process protections for persons currently detained at Guantanamo, but instead of providing for the assistance of counsel at periodic review boards, it provides only for a government-appointed military representative. This is a blatant denial by your administration of basic due process rights—a denial that is already occurring in Afghanistan. As in the so-called administrative review of detention in Afghanistan, detainees subject to the new review process at Guantanamo are to be denied access to classified evidence, even if it is used to justify their continued detention”.

Administrative detention in armed conflict

Ashley S. Deeks, International Affairs Fellow, Council on Foreign Relations and Visiting Fellow, Centre for Strategic and International Studies (on leave from the Office of the Legal Adviser, US Department of State) gives an explanation about this issue especially non-international conflicts that nations such as Sri Lanka faced.

Before making statements on ‘enemy combatants’ in Sri Lanka’s custody, the United States should have given some thoughts to the sentiments expressed by Deeks, a legal authority on conflicts that we are discussing here and the detention of those who are connected with such conflicts.

He says; “When a State is engaged in an armed conflict, one of the most important activities that the State may undertake is detention. The most familiar type of detention during armed conflict is the detention by one State of its opponent’s armed forces: when possible, a State’s armed forces will detain their opponents on the battlefield so as to prevent those fighters from continuing to take up arms. When this kind of detention occurs during armed conflicts between States, the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War (Third Geneva Convention) generally provides the rules for such detentions.(Fourth Geneva Convention)”.

“However, there are a number of other situations in which States engaged in armed conflict may detain persons without necessarily bringing criminal charges against them. (This article does not take a position on whether or when a State should try to prosecute individuals it has administratively detained.)

This article refers to this type of detention as “administrative detention.” First, in international armed conflict, a State may detain certain civilians who appear to pose a security threat to that State. The 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) expressly contemplates that States will undertake such detentions of civilians.

Second, in non-international armed conflict, the State may detain individuals engaged in hostile acts against it, such as armed rebels and individuals that the State deems a serious threat to security. Third, individuals detained as belligerents in international armed conflict, but who are not entitled to prisoner of war status, may face detention without criminal charge until the end of hostilities”.

“A limited set of treaty rules prescribes the procedures a State must follow in determining when, how, and for how long it may administratively detain individuals during armed conflict. While the procedural rules for administrative detention contained in the Fourth Geneva Convention which apply to “protected persons” in international armed conflict are reasonably robust, only a very limited set of treaty rules applies to administrative detention in non-international armed conflicts. Rather, detention in non-international armed conflict is governed almost exclusively by a State’s domestic law. Given the dearth of rules in non-international armed conflict, a lawyer for the International Committee of the Red Cross (ICRC) has proposed a set of procedural principles that States should apply to all cases of administrative detention, whether that detention occurs during armed conflict (either international or non-international) or outside of armed conflict entirely”.

Indefinite detention: The US scenario

Georgetown University Law Professor Jonathan Turley expressing his outrage, said: “I am not sure which is worse: the loss of core civil liberties or the almost mocking post hoc rationalisation for abandoning principle. The Congress and the President have now completed a law that would have horrified the Framers.”

“Indefinite detention of citizens is something (they- the Framers of the US Constitution) were intimately familiar with and expressly sought to bar in the Bill of Rights.”

Other legal scholars agree about all alleged criminals having Habeas, due process, and other legal rights in duly established civil courts.

Legal scholars and rights organisations have repeatedly said that military tribunals are constitutionally illegal. Since June 2004, the US High Court made three landmark rulings.

In Rasul v. Bush (June 2004), the Court granted Guantanamo detainees Habeas rights to challenge their detentions in civil court. Congress responded with the 2005 Detainee Treatment Act (DTA), subverting the ruling.

In Hamdan v. Rumsfeld, the Supreme Court held that federal courts retain jurisdiction over Habeas cases. It said Guantanamo Bay military commissions lack “the power to proceed because (their) structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions (of) 1949.”

In October 2006, Congress responded a second time. It enacted the Military Commissions Act (MCA). It subverted the High Court ruling in more extreme form.

Undermining fundamental rule of law principles, it gave the United States administration extraordinary unconstitutional powers to detain, interrogate, torture and prosecute alleged terrorist suspects, enemy combatants, or anyone claimed to support them.

It lets presidents designate anyone anywhere in the world (including US citizens) an “unlawful enemy combatant” and empowers him to arrest and detain them indefinitely in military prisons.

The law States: “No (civil) court, justice, or judge shall have jurisdiction to hear or consider any claim or cause for action whatsoever….relating to the prosecution, trial or judgement of….military commission(s)….including challenges to (their) lawfulness….”

On June 12, 2008, the High Court again disagreed. In Boumediene v. Bush, it ruled that Guantanamo detainees retain Habeas rights. MCA unconstitutionally subverts them. As a result, the US administration has no legal authority to deny them due process in civil courts or act as accuser, trial judge and executioner with no right of appeal or chance for judicial fairness.

Nonetheless, Section 2031 of the FY 2010 National Defence Authorization Act contained the 2009 Military Commissions Act (MCA). The phrase “unprivileged enemy belligerent” replaced “unlawful enemy combatant.” Language changed but not intent or lawlessness to assume police State powers.

This then is the scenario in the United States whose government is commenting on the detention procedure in Sri Lanka which ended a separatist war defeating a brutal terrorist movement called the Liberation Tigers of Tamil Eelam - LTTE or Tamil Tigers - just three years ago in May 2009.

The Asian Tribune had no alternative but to expose the double standards adopted by the United States administration regarding Sri Lanka’s handling of its non-international conflict. Nevertheless, the Asian Tribune does not dismiss any nation on this globe its sacred right to defend itself from terrorism, safeguard its sovereignty and territorial integrity, planning and executing national security strategies to prevent repetition of terrorist acts that the United States and Sri Lanka faced, with the objective of safeguarding its citizens and award them a peaceful environment.

Courtesy: Asian Tribune