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Friday, Jul 09, 2004

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Guantanamo, Gaza and India

By Rajeev Dhavan

The Guantanamo Bay majority judgments effectively authorise American forces to detain anyone — innocent or otherwise — in the war zone, leaving them to challenge not the basis but broadly the conditions and length of detention.

THE AMERICAN Supreme Court's decisions of June 28, 2004, on the Guantanamo Bay detenus merit far greater scrutiny than the generally euphoric applause that has greeted them. Guantanamo Bay is a modern day Star Chamber and medieval Tower of London — all rolled into one. No autocrat could have asked for more. It is an illegal black hole where absolute powers can be exercised absolutely. It is America's Gulag — only recently upstaged by American atrocities in Abu Ghraib and other prisons in Iraq.

In the Guantanamo cases, the lead judgment of Justice Sandra Day O'Connor is full of the good phrases that everyone wanted to hear, including sentences like "a state of war is not a blank check for the President" or "essential liberties remain vibrant even in times of security concerns" or the detenus "unquestionably have the right to counsel." These phrases have given the judgment a media tour de force. But while the judgment exposes the arbitrariness of Guantanamo, it goes no further. The majority judgment takes many wrong turns which surface for recognition in the minority judgments.

The Court was concerned with three cases. Adopting the evasive approach invented by the American Supreme Court years ago in Marbury vs Madison (1804), the Court denied relief in the Guantanamo cases to remand the matter to the appropriate forum. Two of the cases — Yaser Esam Hamdi and Jose Padilla — concerned `foreign origin' U.S. citizens who had been taken out of Guantanamo to be placed in naval custody on the mainland. The third case was a pure Guantanamo case. In Hamdi's case, the 6:3 majority provided the right to counsel permitting a limited future challenge to the legality of the detention in an appropriate forum. By contrast, the minority judgments of Justices David H. Souter, Ruth Bader Ginzburg and Scalia would have released Hamdi immediately. This courage failed the majority.

In Padilla's case, a 5:4 majority held that it was the immediate Commander holding Padilla in detention and not the Secretary of Defence, Donald Rumsfeld, who could be arraigned as responsible. By contrast, Justice Souter's judgment for the minority approved the District Court's finding on Secretary Rumsfeld's "familiarity... and personal involvement in the handling of the Padilla case." The majority seemed to absolve higher-ups in favour of those who put the handcuffs on. So, Padilla has to start afresh after dropping the person truly responsible, Mr. Rumsfeld, from the case.

The core question before the Court was whether the U.S. administration had the power to detain what it called `enemy combatants' — a phrase which, according to the Court, eluded exact description. Unable to find a source for such a magnum power of detention, the Court traced the power of detention in the Afghan situation to the Authorisation for use of Military Force (AUMF) Resolution of 2001. But even the AUMF does not authorise `detention' but merely gives a broad power to use "all necessary and appropriate force" against "nations, organisations and persons" associated with the September 11, 2001 attacks.

Dissenting Justices Souter, Ginzburg and Scalia rightly point to the Constitution and Congress' statutes to underline the most simple of propositions known to every law student that no detention is valid unless it is backed by a clear legal authorisation. Ergo, no law, no authorisation, no detention. The minority would have released Hamdi. The majority condemned him to another round of litigation before the appropriate court to challenge only aspects of the legality of, but not the power of, detention.

The idea that an administration can detain people without clear provisions authorising detention is wholly subversive of the rule of law. The Guantanamo Bay majority judgments effectively authorise American forces to detain anyone — innocent or otherwise — in the war zone, declare them to be `enemy combatants' and interrogate them, leaving them to challenge not the basis but broadly the conditions and length of detention. This effectively confirms the near absolutist imperial military power of America to preserve the lawfulness of the legal black hole while allowing some fragments of legality to penetrate its density. Detentions in Guantanamo Bay are lawful. Limited challenges to the legality of time, place and conduct may be permissible.

Normally, courts are very reluctant to interfere with what the military does. But recent judgments show how courts can become the conscience keepers of the army. Even though most of the Israeli Army's military strategies are harsh, Chief Justice Aharon Barak of the Israeli Supreme Court led the way in putting humanitarian restraints on the Army's manoeuvres. In the Physicians for Human Rights judgment (May 30, 2004), the Court refused to go into military strategy questions of Israel's presence in the Gaza Strip, but directed the provision of water, electricity, evacuation of the wounded, investigations into firing and medical support in the area. On July 1, 2004, in the Boundary Fence cases, the Israeli Supreme Court decreed that 20 miles of security fence through Palestinian land would have to be re-routed even if it compromised Israeli security because the old route `severely' violated the freedom of movement and livelihood leaving villages in `chokehold'.

There are several thresholds of judicial intervention. At the lowest level is the American Guantanamo Bay judgment, which condones and legitimates the unlawfulness of America's military actions while affording a minimal due process. At the next level, come a large number of judgments requiring a humanitarian due process from the army. In 1980, the Indian Supreme Court awarded compensation to chastise the army in `disappearance' cases. India's NHRC (National Human Rights Commission) continues to investigate the Punjab `disappearance' and canal murder cases. But at a slightly higher level of scrutiny, Indian courts faltered in the Naga Peoples' Movement case (1998) to permit `shoot to kill' powers to the army. Not wanting to upset the applecart on court-martials, in 1990 the Indian Supreme Court refused to require recorded reasons for `reviews' by army brass in court-martial cases. The second Israeli Boundary Fence judgment takes us to a more exacting level of scrutiny by protecting human rights even where military strategy is involved.

India can learn from the canvass of these decisions. There are grave allegations against the army's brutal violation of human rights. About five years ago, the NHRC called a meeting of the army staff and others. The Chief of Staff and many generals pleaded that the Indian Army does not want the reputation of a transgressor of human rights. Years of discussions between the Indian Army and the NHRC have yielded dividends. Under the Act of 1993, which constitutes the NHRC, the NHRC cannot investigate the army but has to be content with post-office justifications in writing. In the celebrated Bijbehara massacres (as unjust as Gujarat's Best Bakery case), the NHRC was abruptly denied documents to court-martial proceedings, which acquitted everyone allegedly involved. However on May 27, 2004, the NHRC reported a greater awareness of human rights violations as the Army punished 131 personnel (including officers) for human rights violations including two given life imprisonment, 59 rigorous imprisonment, 11 dismissals, and various other punishments. These are encouraging indications that India's military actions fall under the canopy of human rights and due process.

Let us return to Guantanamo Bay. If `terrorism' is invasive of human rights, the power to deal with terrorism can subvert the very human rights that counterterrorism measures claim to protect. Apart from national legislation to curb civil freedoms, America has declared itself the most capable imperial military to launch attacks on every state on the basis of over-broaddoctrines of anticipatory self-defence and humanitarian intervention anywhere and every where. In this process, it created the black hole of Guantanamo Bay. People from the `war zones' could be randomly picked up as `enemy combatants' and thrown indefinitely into the black hole.

The American Supreme Court had an excellent opportunity to effectively prevent such military detentions. But the majority judges in the Guantanamo cases blew it. After the Guantanamo judgments, America can randomly pick up supposed `enemy combatants' to detain and interrogate them. To the extent, that American courts have jurisdiction to consider limited aspects of any detention the judgment deserves some applause. But the applause cannot be full throated. An imperial judiciary has permitted an imperial America to act imperially — subject to myopic scrutiny through long-drawn legal processes. The Guantanamo decisions have different meanings for different people. For liberal Americans, some light is shed on a legal black hole. For all of us, America's military powers are enhanced with a thin coat of sugar. For the cause of American civil liberties, these judgments are a step forward. For the rest of us, they leap backwards to legalise the patently unlawful. American justice simply does not offer enough on Guantanamo.

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