The Obama Administration can't just say it will follow the rule of law - the Bush administration said the same thing. It must actually do so.
By Pete Masciola
The United States should handle inmates upon the closure of detention facilities in Guantanamo Bay in accordance with the rule of law--which includes the Geneva Conventions. This is a simple answer, but abiding by the law would mark a revolutionary change in the government's handling of these issues.
President Obama, in his Executive Order on the review and disposition of individuals detained at Guantanamo Bay, requires his Administration to act "in a manner consistent with law and the national security and foreign policy interests of the United States." Elsewhere, in describing "determination of other disposition" (as opposed to transfer or prosecution) the Executive Order requires the review process to "select lawful means, consistent with the national security and foreign policy interests of the United States, and the interests of justice, for the disposition of such individuals."
Actions speak louder than words. The former administration's mantra "the United States does not torture" rang hollow in the ears of most of the world. It is critical that the Obama Administration not only say it will follow the rule of law (the Bush administration said the same thing)--it must actually do so.
Legal scholars may debate some particular features of the rule of law. However, a few relatively undisputed elements are: (1) nobody is above the law; (2) everyone is equal before the law; (3) courts should employ fair procedures (e.g., "due process"); and (4) the law should be relatively stable over time. (We'll leave for another discussion rule of law concepts like "people must be able to understand the law and comply with it" and the principle of efficacy--"people should be ruled by the law and obey it.") [This working definition is derived from several sources, including such diverse publications as "The Rule of Law Handbook: A Practitioner's Guide for Judge Advocates" (and authorities cited therein) and Wikipedia.]
Even those with only a passing familiarity with how the United States Government has treated many of the detainees at Guantanamo over the last seven years will recognize we have not followed the rule of law.
(1) From the President down to the people who formulated the capture, detention, confinement and interrogation policies, the United States Government took the position that some actions were beyond the review of Congress, the Judiciary and the American Public. Jack Goldsmith's book The Terror Presidency, Jane Mayer's book The Dark Side and the "torture memos" contain just a few examples of how our country got off track from this fundamental principle.
(2) The Military Commissions Act (MCA), by its terms, only applies to "alien" unlawful enemy combatants. One of the prosecutors in the military commissions actually argued in the Hamdan case, in the course of responding to an equal protection of the laws argument made by defense attorneys, that "It is not a suspect class; the only class that is, is the enemy class." Equality before the law is a bedrock principle from which we must not shrink. Just as our military leaders counseled against departing from treating all detainees in accord with the Geneva Conventions, in part, because our soldiers would likely face similar deviations in the future, so our citizens are likely to face similar deviations from the equal protection of the laws if we discriminate based on alienage.
(3) The MCA and its implementing rules and regulations were rife with efforts to subvert due process and provide what many termed "show trials". The fundamental procedural flaws ranged from unprecedented rules allowing the liberal use of hearsay (which military commissions prosecutors actually argued were drafted to benefit only the prosecution, not the defense), to the potential admission of statements obtained through coercion, to de facto compulsory self-incrimination. Each one of these rules alone was fundamentally unlawful. Together, they were a legal abomination. Whatever courts or tribunals the Administration chooses to try detainees, they must be "regularly constituted courts" that afford "all the judicial guarantees which are recognized as indispensible by civilized people"--in the language of Common Article III of the Geneva Conventions. In short, they must be fundamentally fair.
4) Because the prior Administration attempted to create a new system beyond the rule of law to prosecute certain individuals detained in the "war on terror", it was predictable that the efforts would proceed in fits and starts, various aspects of the endeavor would be declared illegal by the courts, Congress would get involved, and new rules and regulations would be issued in attempted "do-overs." The Administration should be wary of any new legal regime that strays from the tried and true laws and procedures established for trials in federal courts or courts-martial. These rules establish the rough contours of due process, and we stray from them at our peril.
Colonel Pete Masciola is Chief Defense Counsel at the Office of Military Commissions.
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Comments (5)
Colonel....
First, I want you to know that I am deeply appreciative of the service you, and a host of other officers serving as defense counsel for Gitmo detainees have rendered to the nation. It is not so much about them as it is about us and what values we hold dear, even in the face of danger. It is not just on the battle fields of Iraq and Afghanistan that we find soldiers of great courage and integrity; they also serve who stand their ground in the administration of military justice.
Certainly I agree with you with respect to Military Commissions as they are currently constituted. I see no reason why the rules and processes of the standard courts-martial could not and should not be adopted as the basic framework for Military Commissions.
However, it does seem to me that there does need to be a preliminary hearing process to establish probable cause for a detainee's classification, i.e. is this an innocent, a lawful combatant, an unlawful combatant, or a terrorist. The detainee should be entitled to challenge his classification and to the assistance of counsel at such a hearing.
Nothing troubles me so much as the apparent indifference of the Department of Defense and the Administration as a whole to getting rid of those poor souls innocently scooped up into the Gitmo meat grinder. Holding these particular people could not be more stupid.
February 25, 2009 3:36 AM | Report Offensive Comment
Posted on February 25, 2009 03:36
After reading this piece by Col Masciola, I am not clear on what about the MCA violates the rule of law. He obviousy doesn't like the rules, but his dislike of the rules doesn't make the commissions a violation of the Rule of Law. Military commissions convened under the MCA are clearly regularly-constituted courts established by ACT OF CONGRESS (one of whose chambers was in DEMOCRATIC hands at the time of the MCA's enactment). While it allows a more liberal use of hearsay than is permitted in U.S. Article III courts or courts-martial, by international standards, the MCA rule is unremarkable. The adhoc international criminal tribunals for both Rwanda & the Former Yugoslavia both permit the use of hearsay, as do most domestic legal systems in Continental Europe. Statements obtained by torture are INADMISSIBLE and thse obtained by any lesser degree of coercion are only admissible IF the judge determines that they are RELIABLE and that their use is IN THE INTERESTS OF JUSTICE. If the judge can't make those two determinations, then coerced statements cannot be used either.
By international standards this is far more fairness and process than has historically been accorded to alleged war criminals.
We can certainly agree that it is important to uphold the Rule of Law; One does not have to tear down the MCA to uphold the Rule of Law.
February 24, 2009 9:12 PM | Report Offensive Comment
Posted on February 24, 2009 21:12
So, if no one is above the law, when will Obama be prosecuted for accepting gifts from his home mortgage broker and from Tony Rezko. Face it, most politicians are above the law. Obama's appointees only had to pay their taxes when they were nominated for positions in his administration.
February 23, 2009 2:44 PM | Report Offensive Comment
Posted on February 23, 2009 14:44
Much has been made about observing the requirements of the Geneva Convention as it would pertain to the detainees at Guantanamo Bay. It might be a good thing for people to actually read the convention before saying that we aren't following it. The Convention only applies to lawful combatants, i.e. those who have a defined command structure, wear distinctive uniforms so as to separate them from the general population, etc. None of those detained at Guantanamo meet these requirements. People confuse the requirements of a codicil to the Geneva Convention which would have recognized irregular armed forces but this codicil has not been signed nor ratified by the Senate. So the detainees are entitled to receive whatever the detaining power (US) wishes to extend to them. If they were transferred to a supermax prison in the US they would be locked down 23 hours a day, much more than they are at Guantanamo.
February 23, 2009 10:02 AM | Report Offensive Comment
Posted on February 23, 2009 10:02
Having read all the above submissions it is stricking that there should be even questions regarding the rule of law.
This is not a question where there is any confusion, either you have it or you do not have it [just like virginity, or life versus death].
I can see that some are worried that the evidence [torture qained, or unsubstantiated, etc] might make conviction under the rule of law impossible. That would not be the first time nor the last.
Perhaps others worry that evidence might come forth that there was indeed torture. Then the USA under the rule of law [as per Geneva Convention, Hague convention, etc] is responsible to charge those who commited torture, and those above in the military political system who ordered these procedures. THAT IS THE RULE OF LAW - as the USSC confirmed that the Geneva convention etc is applicable in USA RULE OF LAW.
Now either the USA Government undertakes to follow the rule of LAW, and review the Military Rules to assure there is no loop hole for torture, to insure there is no black prison system, that there is no rendition, or the USA ANNOUNCE THAT THE RULE OF LAW DOES NOT APPLY generally, only when it is convenent.
If that is the actual position proposed by the President [rendition, missile attackls versus Pakistan, etc] then there is no hope for the USA to regain her international stature,. regardless of the pronouncements of various USA supported dictatores, kings and subservient governments.;l
Recall, that after the present of Wall Street to the world, the USA will have to work extremely hard to regain the confidence of the world, aside from detail like Rule of LAw, Unilateralism, and blind support for Israel.
A country which depends on the rest of the world to finance it, to sypply it with necessites [oil, gas, various consumer goods, etc] does not have the ability to proclaim new direction, when the most basic tenet of her Constitution, the RUKE OF LAW IS ABROGATED.
All sooner or later have to pay for their mistakes. The USA Supreme Court made one bad decvision in Gore V. Bush in 2000, then the USA electorate made one more bad decision in 2004
and now the bills are due. Some of the bills are hard to take, eg. return to the RULE OF LAW, recession/depression for the next few years, all the wounded from IRaq, Afganistan, and other places not advertized, but such is life.
W@hen the music plays you gotta dance...
February 22, 2009 4:41 PM | Report Offensive Comment
Posted on February 22, 2009 16:41