Gitmo Decision: Is Justice Still Alive In The USA?

Yesterday's decision to halt the farcical "military tribunal" processing of Gitmo detainees could signal bigger problems for the Bush cartel. Judge James Robertson of the U.S. District Court in Washington brought to a halt proceedings against a Yemeni man, Salim Ahmed Hamdan, whose only known crime is to have driven a car with Osama bin Laden inside it.

The ruling reminds us that it was US Supreme Court pressure which forced Bush & Co to set up the wholly inadequate "military tribunal" processes in the first place, despite their great reluctance. However bad things might look right now, Bush still does not totally control the GOP-friendly Supreme Court. If the justices are willing to push Bush on the Gitmo issue, there is hope yet that they could one day - when the evidence is all in - declare the Nov 2, 2004 vote a fraud.

The next step, of course, would be to physically pry the White House keys out of Bush's fingers and drag him down the stairs to a waiting police wagon. And that could be a whole new battle in itself. Besides, there is still a very good chance that Bush will be able to totally stack the Supreme Court in his favour before any such decision on voter fraud comes before it.

But yesterday's decision offered at least a glimmer of hope, particularly for the long-suffering detainees. Here's how the Houston Chronicle reported it:

In the 45-page ruling, the judge said the administration had ignored a basic provision of the Geneva Conventions, the international treaties signed by the United States that form the basic elements of the laws governing the conduct of war.

The conventions oblige the United States to treat Hamdan as a prisoner of war, the judge said, unless he goes before a special tribunal described in Article 5 of the Third Geneva Convention that determines he is not. A POW is entitled to a court-martial and may not be tried before a commission.

The U.S. military did not conduct Article 5 tribunals at the end of the Afghanistan war, saying they were unnecessary. Government lawyers argued that the president had already used his authority to deem members of al-Qaida unlawful combatants who would be deprived of POW status.

But Robertson said that that was not enough. "The president is not a panel," he wrote. "The law of war includes the Third Geneva Convention, which requires trial by court-martial as long as Hamdan's POW status is in doubt."

The government is in the midst of conducting a separate set of tribunals here at Guantanamo similar to those required by the Geneva Conventions to determine if detainees were properly deemed unlawful enemy combatants. Those proceedings, called Combatant Status Review Tribunals, were quickly put into place by the Bush administration after the Supreme Court's ruling in June that the Guantanamo prisoners were entitled to challenge their detentions in federal court. Robertson said, however, those tribunals were not designed to satisfy the Geneva Convention requirement and were insufficient.

He also said that in asserting that the Guantanamo prisoners are unlawful combatants and outside the reach of the Geneva Conventions, "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 applications to Americans captured during armed conflicts abroad."

P.S: From an Australian point of view, it was quite sadly typical how the Howard government immediately insisted this would have no impact on the cases of Gitmo detainees Hicks and Habib, when it very obviously will.