On Nov. 8, U.S. District Judge James Robertson ruled that Salim Ahmed Hamdan, an enemy combatant, had been denied due process. In doing so, Robertson calls into jeopardy the validity of the status of the 500 enemy combatants in Guantanamo.
The Geneva Convention and international norms afford certain rights to individuals captured in times of conflict, also known as prisoners of war. Prisoners of war have certain freedoms and protections, including protections against torture and interrogation.
President Bush’s categorization of ‘enemy combatants’ has come under criticism since it’s inception. The Geneva Convention is fairly clear on the matter.
Article Four defines a prisoner of war as either a member of a standing army, part of a resistance movement inside or outside an occupied territory and inhabitants of an area who have taken up arms against an invading force.
Yet Bush’s government has argued time and time again that terrorists and terrorist organizations fall out of international laws and standards. Their rogue status removes any protections under the Geneva Convention.
Thus, ‘enemy combatants’ are subject to interrogations, military tribunals without counsel and tribunals in which hearsay not permitted in regular courts is allowed as evidence.
But in the recent ruling, Robertson declared that the Pentagon is not ‘competent’ to make a determination in declaring Hamdan an ‘enemy combatant.’
Furthermore, Robertson argued, ‘the government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States’ own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad.’
If the ruling is not overturned, enemy combatants will have access to counsel but may still be subject to courts-martial, which are used for those held under military control.
‘Enemy combatants’ will need to be considered POWs until the government can create a legal way to differentiate between the two according to the ruling.
POWs are protected against coercive and torturous interrogations. ‘Enemy combatants’ are not.
The Pentagon has publicly acknowledged that certain coercive techniques are employed on prisoners, which would otherwise be illegal. There are no said protections for ‘enemy combatants.’
It is little surprise that the Bush administration has little respect for international norms or opinions. As stated repeatedly, the United States is no longer inhibited from acting unilaterally.
The suspension of rights for POWs is just part of America’s contrast to the international community. This, coupled with the embarrassing mistreatment of Iraqi POWs, does not do well to create a positive image. The rest of the world, especially the Middle East, sees the United States trying to create democratic institutions on the one hand and denying them on the other.
Perhaps it would be better to create more egalitarian institutions, rather than shooting ourselves in our diplomatic foot and showing how barbaric democracy can be.
And what has been gained by denying 500 individuals the right to lawyers and access to the evidence against them?
The high profile terrorists have yet to be charged, and the military courts are having difficulties and criticisms lashed at them at every turn.
And what of cases like Jose Padilla, a U.S. citizen who, on returning from Pakistan, was detained without being charged with a crime. Later labeled an ‘enemy combatant’ by the Bush administration, Padilla has been detained for over two years without being formally charged with a crime.
So little was known about Padilla that his lawyer, Donna Newman, on trying to overturn his detainment in the Supreme Court, had no idea where her client was held. The Supreme Court, decided that she had filed her petition to the court in the wrong district.
Padilla’s fate has still not been decided. Nor have charges been filed. Hopefully, with Robertson’s recent ruling, the Bush administration will realize the danger of broadly ignoring international norms like the Geneva Convention.
The war on terrorism will not be won with the suspension of human rights, but with the adjudication of democratic protections and freedoms.
Ernest Kim is a third-year political science and engineering major. He can be reached at email@example.com