High Court rebukes Bush on tribunals

On June 29, in a five to three decision, the U.S. Supreme Court struck down the Bush administration’s use of military tribunals to decide the fate of detainees held as “enemy combatants” at the Guantanamo Bay naval base in Cuba.

Chief Justice John Roberts, a recent Bush appointee, abstained, since he had ruled for the government side in an earlier detainee case.

Many big-business media outlets hailed the “landmark” decision for restoring the rule of law, and opponents of war and repres sion were honestly heartened by the ruling. But its true impact remains to be seen.

The Supreme Court’s decision in “Hamdan v. Rumsfeld” does not mean prisoners at Guantanamo or other U.S. torture camps will be freed. Nor does it guarantee them trials under the U.S. legal system. The decision doesn’t directly address the status of “enemy combatants” who haven’t been charged with crimes—as the vast majority have not.

Still, the decision was welcomed as an important step forward by lawyers and advocates for the detainees. Michael Ratner of the Center for Constitutional Rights, which represents nearly half the Guantanamo detainees, said, “There is no way for President Bush to continue hiding behind a purported lack of judicial guidance to avoid addressing the illegal and immoral prison in Guantanamo Bay.”

Ratner called on Bush to “try our clients in lawful U.S. courts or release them.”

What’s really in the decision?

While there has been much speculation about the possible repercussions of the court’s decision, the ruling boils down to just two points:

First, Bush can’t unilaterally set up military tribunals. He must get congressional authorization first.

Second, the tribunals, or whatever form is finally decided on, must accord with the Geneva Conventions and some recognized body of law, like the Uniform Code of Military Justice.

This means, in effect, that detainees must be accorded the rights of prisoners of war when brought to trial.

Both points are setbacks for the Bush regime, which asserts that it has the right to act without any regard for international or U.S. law in its conduct of the “war on terror.”

Bush has vehemently denied that the detainees, and specifically those accused of being supporters of the Taliban and Al Qaeda, are prisoners of war and asserted that they therefore have no rights.

Immediately after the Supreme Court ruling, congressional Republicans and Democrats started plotting ways to help Bush circumvent the court’s decision. Plans are afoot to craft new laws to legally ratify the military tribunals.

Leading Republicans Sen. Mitch McCon nell and Sen. Lindsey Graham attacked the court ruling for invoking Article 3 of the Geneva Conventions, which prohibits “humiliating and degrading treatment” and bars violence, including murder, mutilation and torture.

Of course, this list reads like a menu of the offerings at Guantanamo, Abu Ghraib prison in Iraq, and other U.S.-run facilities, which were recently condemned by the United Nations Commission on Torture.

So desperate are conditions at Guantanamo that three prisoners committed suicide in June. Hunger strikers are force-fed and those who dare to speak up are ravaged by a “quick response force.”

McConnell, speaking on NBC’s “Meet the Press” July 2, warned that invoking Article 3 “means that American servicemen potentially could be accused of war crimes,” while Graham, on “Fox News Sun day,” said “Congress can rein [the court’s decision] in, and I think we should.”

The White House says all that’s needed to comply with the court ruling is for Congress to pass a law rubber-stamping Bush’s plan.

So-called moderate Republican senators like John McCain and Arlen Specter, along with leading Democrats, have called for adjustments that would give the tribunal process the cover of capitalist legality, while denying that detainees have the rights of prisoners of war.

Democratic Sen. Jack Reed told Fox News, “[The detainees] are entitled to a process that will establish their guilt, their culpability, their connections to Al Qaeda.”

Tellingly, his “process” leaves out the part that might establish their innocence. And of course it doesn’t allow any questioning of U.S. imperialism’s right to decide the fate of people kidnapped halfway around the world.

Senate hearings on complying with the court ruling are expected to begin July 11.

Of paramount concern for each capitalist party is how to exploit the court’s decision to its own advantage in November’s elections.

Hamdan v. Rumsfeld

Salid Ahmed Hamdan, a Yemeni man captured in Afghanistan in 2001, is accused by the United States of being Osama Bin Laden’s personal driver and a “war criminal.” He is only the second detainee to have his case come before the high court since the “war on terror” was declared almost five years ago.

Hamdan’s case challenged the Bush administration’s authority to establish military tribunals without congressional authorization. It also challenged the proceedings of his case, which began in 2004, as violating the U.S. Constitution, U.S. military law, and the Geneva Conventions on the treatment of prisoners of war.

The tribunals favored by Bush are composed of a few military judges. They can block the accused and their civilian lawyers from ever learning of the evidence brought against them by labeling it “classified information.” Those charged have no right to confront their accusers, or even to be present during much of their trials. (Associated Press, July 3)

“We conclude that the military commission convened to try Hamdan lacks power to proceed because its structure and procedures violate both the [Uniform Code of Military Justice] and the Geneva Conven tions,” said the court majority’s opinion.

Bush had claimed the right to set up military tribunals under an emergency law passed by Congress shortly after the Sept. 11, 2001, attacks. In ruling that this law doesn’t give the president a blank check to do whatever he wishes, the court’s decision also opens the door to legal challenges of other measures, such as domestic wiretapping and spying on financial transactions. (Los Angeles Times, June 30)

Congress had attempted to nullify Hamdan’s case by passing the Detainee Treatment Act last Dec. 30. According to Marjorie Cohn, president-elect of the National Lawyers Guild, the DTA strips federal courts of jurisdiction to hear habeas corpus petitions filed by Guantanamo detainees. But the Supreme Court majority ruled that the DTA could not be applied retroactively to Hamdan or others whose cases were already pending.

Hamdan is one of only 10 of the 759 men and boys detained at Guantanamo since January 2002 who have actually been charged with a crime. U.S. officials now claim that between 40 and 80 Guantanamo detainees are considered eligible for war-crimes trials.

Currently about 460 prisoners are held at Guantanamo. The rest have been returned to their home countries or sent to third countries.

Struggle will decide

The Supreme Court’s decision did not directly address the future of the Guantanamo detention facility. But in recent months, under growing international pressure to close the prison, Bush has hinged its future on the court’s ruling in the Hamdan case.

Now the State Department is trying to quickly negotiate the repatriation of as many as 300 more of the remaining detainees to their home countries.

Belgian Sen. Anne-Marie Lizi, who led an inspection team of the Organization for Security and Cooperation in Europe, reported July 1 that there are “only 30 to 40” real cases among the Guantanamo detainees. (French Press Agency)

There is much speculation that Bush will take this opportunity to shut down the widely known and despised Guantanamo operation, leaving new prisoners to get flushed through the network of secret CIA-operated torture camps spread across Eas tern Europe and other parts of the world.

What the June 29 Supreme Court ruling shows above all is that powerful forces among the big U.S. capitalists feel the Bush gang has overstepped its legitimate boundaries as “executive committee of the ruling class,” as Karl Marx and Frederick Engels so eloquently described it.

More and more, ruling-class pundits are saying that Bush’s adventurism has weakened U.S. imperialism’s global position and needs to be brought under control.

At the same time, however, there is no real opposition to the war in Iraq or the “war on terror” from the capitalist political machines. The real opposition comes from the grassroots. Bush still gets his way on the Pentagon budget (including a unanimous vote in the Senate), extension of the Patriot Act and his major appointments, including to the Supreme Court.

The Democrats are not appealing to the masses to change direction. Their leaders back the war drive, as their support of the $517-billion military budget proves. Any disputes with Bush are over specific policies or represent their scrambling for political advantage.

In tandem with the Republicans’ election-year push to resell the “war on terror” to the skeptical working class and other sectors, there is an effort to clean up the image of the war machine—for example, by prosecuting a handful of U.S. soldiers for rape and murder of Iraqis—while keeping the war and the war crimes it inevitably generates going full-steam.

How broadly or narrowly the Supreme Court’s ruling is interpreted, what happens to the detainees at Guantanamo and elsewhere—all this ultimately rests on the ability of the worldwide anti-imperialist movement to mobilize popular discontent into powerful actions that challenge the dominance of the war profiteers and their political stooges.

The anti-war movement in the United States has a special obligation to redouble its efforts to bring the troops home now and free the victims of Pentagon repression everywhere.