Focus on Rights

The way a fight ought to be waged
On a five day visit to New York last week to observe the ongoing civil liberties struggle in reference to the enforcing of basic principles of humanitarian law in the war theatres that the US maintains abroad, I was struck anew by the extraordinary resilience of the American spirit.

Confronted by the continuing barrage of shrewd albeit insidiously dehumanizing propaganda in reference to measures that the Bush administration has been 'compelled' to take in the name of the 'war on terror', ordinary decent Americans are fighting back.

Flag bearers of this growing resistance such as the old and historic American Civil Liberties Union (ACLU) and newer lobbies including Human Rights Watch have taken on the fight with tremendous courage that our dormant civil society in Sri Lanka would do well to emulate. This too in the face of ominously McCarthy-ish claims by the current administration that, to oppose whatever it does in the fight against terrorism, would be 'unpatriotic' and against America itself.

The gains of this resistance movement have been small but significant. Most notable was this Monday's ruling by the US Supreme Court that it has jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad and incarcerated at Guantanamo Bay, the US enclave in Cuba.

In Rasul v. Bush (03-334), the majority opinion of Stevens J., (with whom O'Connor, Souter, Ginsburg and Breyer JJ joined and Kennedy J. filed a concurring opinion), affirmed "the federal courts jurisdiction to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." This jurisdiction extended to areas where the US exercises complete control, as is the case with the Guantanamo Naval Base. This view was dissented from by Scalia J. (joined by Rehnquist, C.J. and Thomas J.).

Rasul's case concerned two Australians and twelve Kuwaitis captured in Afghanistan and thereafter detained at Guantanamo Bay. The detainees argued that their detention was not legal, that they had never been combatants against the United States or engaged in terrorist acts and that they had not been charged with any wrongdoing or permitted access to legal counsel or courts. Interestingly, the District Court had construed their cases as habeus corpus applications and had dismissed them on the basis that foreign detainees held outside the US cannot invoke review by US Courts.

This finding was upheld by the Court of Appeals but reversed on Monday by the Supreme Court. Rasul's application was referred back to the lower courts for determination of the question whether detention policies practiced in Guantanamo Bay violated fundamental principles of the American Constitution.

On the same day, the Supreme Court in Hamdi v. Rumsfeld (03-6696), asserted a similar authority in a separate case over American citizens held incommunicado and without access to legal counsel within the US itself. The US government argued that an American citizen captured in Afghanistan and held for more than two years without trial or being charged, could be continued to be so held so long as it could put forward some evidence to show that he was an 'enemy combatant.' This argument was not upheld. Eight members of the Court agreed that Hamdi had been deprived of his due process rights because he had never been given a meaningful opportunity to be heard. He therefore had the right to both an attorney and to challenge his detention in court.

While the Court acknowledged the power of the US Congress to give the President of the US authority to detain citizens in the war under "very limited circumstances", a vital qualification required the satisfaction of due process rights. A citizen held in the United States as an enemy combatant should therefore be given a meaningful opportunity to contest the factual basis for that detention, before a neutral decision-maker.

Monday's cases did not concern prisoners held at the now notorious Abu Ghraib prison in Iraq. However, the general outrage manifested in the US over the recent inhumane prisoner abuse formed a significant background to the judicial rulings. Earlier, administration warnings and rulings by foreign tribunals, regarding the determination of the correct legal status of detainees held by the US in its war against terrorism had been disregarded by the Bush administration. However, the June 28 rulings are reprimands delivered by the highest judicial authority in the United States itself, which means that they cannot be brushed aside in quite the same juggernaut way.

Currently, Human Rights Watch notes that more than six hundred people from forty four countries are being held indefinitely by the United States at Guantánamo with no charges filed against them and no access to lawyers or to their families. Most have been held for eighteen months or longer.

The US government has refused to treat them as prisoners of war, and has refused to say when (if ever) they will be returned home. As a result, they have languished in a legal limbo that international law does not contemplate and that American constitutional law does not permit. Indeed, the government has claimed that it can continue to hold even those detainees who may eventually be tried and acquitted by military commissions.

This flagrant violation of fundamental norms governing detention of individuals by the US has set a worrying precedent for other countries who attempt to use extraordinary security laws to justify setting aside the basic liberties of individuals. On an earlier occasion, the Supreme Court intervened under the US Freedom of Information Law to order the release of documents and internal memos in the keeping of the FBI which showed blatantly political use of the US Patriot Act including obtaining information about innocent people. The memo contradicted the government's assertion, on public record, that the Patriot Act can be used only against suspected terrorists and spies.

Like the US, Sri Lanka was also governed not so long ago, by a special legal regime under the Public Security Ordinance and the Prevention of Terrorism Act, which gave extended powers to the security forces. These powers were often used in an arbitrary manner, the effects of which we are still struggling to shake off even though these laws themselves have lapsed. The re-introduction of these laws where again, a government finds itself under presumed or actual threat by destructive forces is quite within the realm of the possible. In Sri Lanka as in the US, we had the Supreme Court intervening in many instances to whittle down the effect of these laws.

On Monday, writing for the majority in Hamdi v. Rumsfeld (03-6696) Justice Sandra Day O'Connor cautioned that "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens." This warning, delivered by the US Supreme Court in the cases discussed in this column, remains apt for us as well. In a general sense therefore, the June 28 rulings represent a historic victory for civil libertarians not only in the US but also in all countries where special laws are used to deprive individuals of their basic civic liberties.

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