Earlier this year the Supreme Court of the United States ruled that the detainees at Guantanamo Bay and other such facilities were entitled to the rights spelled out in Article 3 of the Geneva Conventions. They also ruled that the detainees had the right of habeas corpus. Without this right a person can be detained indefinitely without any recourse to the court system to determine the legality of the detainment.
Article 3 states the following:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Article 3, and the Supreme Court decision upholding it, limits the methods allowed in interrogations and other questioning by American forces, and further limits the type of evidence allowed to be used in military commissions. It must be understood that the American military commissions follow different practices than that of the US Judicial system, as well as the court martial system used for the military. Both of these systems give people approximately the same rights. The military commissions for Guantanamo give the defendants far fewer rights, and allow evidence to be entered that has been obtained by hearsay, coercion, or torture. There are also limitations on the choice of legal defence, etc. The Supreme Court argued that the military commissions established to try the detainees violate US Law and the Geneva Conventions.
This week the Military Commissions Bill (MCS) of 2006 passed through Congress with a majority in both Houses, and is ready to be signed into law by President Bush. It addresses the issues leading to the Supreme Court’s previous decision by legalising some of the practices addressed by the court decision, by giving the President increased authority to interpret what is acceptable as torture, and by denying the right of habeas corpus in any US court jurisdiction to the detainees, thus allowing them to be detained indefinitely without judicial recourse (there is a military review board, however). In addition, the President has the right to interpret the Geneva Conventions, and the courts have no legal recourse to question his interpretations.
This gives the government more powers and authority than before the earlier Supreme Court decision, and attempts to reduce the jurisdiction of the court system. Some have argued that this is a precedent to reduce the constitutional powers of the judiciary relative to Congress and the Executive Branch.
However, when I heard about this I went surfing for more information and I came upon a very interesting blog entry. It discusses the issue very carefully, and there are some interesting implications and implied contradictions in the new legislation. I would highly recommend that you read it.
The blog is Balkinization. The author is Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale University. In particular look at his points regarding the legality of some of the authorised actions in the bill versus the means to bring to account those who choose to choose questionable actions.
Here is a quote from Dr. Balkin’s entry:
Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution.
Well worth reading.