Let's take a little test now. Can the President of the United States, or his agents, take a U.S. citizen into custody, declare him an unlawful enemy combatant, and keep him indefinitely in jail?
The short answer is: the compassionate conservative has already done it, but the law is clear that only a court of law can determine who has POW (lawful combatant) rights and who does not.
Remember, the USA PATRIOT Act authorized the Attorney General to detain any immigrant without charges for seven days. It authorized continued and apparently indefinite detention for renewable periods of six months on the mere say-so of the Attorney General, once charges had been filed - but those charges did not need to have anything to do with terrorism. Indefinite detention without a hearing could occur (and has occurred) on nothing more than a visa violation.
But the PATRIOT Act applies only to immigrants. Why should Americans be concerned?
Now come Hamdi and Padilla. Should we be surprised?
Hamdi was captured in April 2002 Afghanistan, flown to Guantanamo, discovered to be an American citizen and transferred to Norfolk Naval Station Brig. in Virginia, where he remains
without access to an attorney or a court of law.
Padilla was taken into custody at Chicago O'Hare airport on May 8, 2002 and flown to New York, where he was detained as a material witness for Grand Jury proceedings, assigned counsel, and set for a hearing date. Prior to the hearing date, he was designated an unlawful enemy combatant by Presidential order, and transferred, without notice to his lawyer, to the U.S. Navy Consolidated Brig in South Carolina where he is held
incommunicado and has been denied all access to counsel. Thus, two American citizens have now been imprisoned for more than six months without charges. The District Court in the Padilla case (the Southern District of New York), ruled that the President has the authority to detain an unlawful enemy combatant, which again jumps the gun. Of course, these courts were only hearing habeas corpus petitions, to decide whether these persons had a right to be heard at all, for status determination or otherwise. Presumably, these courts will now hold hearings to determine the status of these men, and if they are determined to be unlawful enemy combatants not protected as POW's by Geneva III, the government may then ostensibly detain them for the duration of hostilities.
However, while there is no question that the government has a clear obligation to detain those determined to be threats to national security, it has no authority to make such determinations without judicial oversight.7 Indeed, to do so in the face of longstanding treaties (to which we are signatories) that require such oversight is a violation of the Geneva Conventions - and a violation of Geneva is, by federal statute, a war crime.
Yes, a war crime, punishable by fine, imprisonment, or even potentially the death penalty. Check it out: 18 U.S.C. sec. 2441.
Similarly, Bush's Military Tribunals violate Geneva.
Creighton University international law professor Michael J. Kelly writes: "The illegal nature of [President Bush's Military] order only serves to perpetuate a sense of unfairness. As written, this order runs afoul of the Third Geneva Convention"8
Jordan J. Paust, international law professor at University of Houston and former military officer, writes: "In its present form and without appropriate congressional intervention, the Military Order will create military commissions that involve unavoidable violations of international law and raise serious constitutional challenges."9
Judge Evan Wallach, a judge in the United States Court of International Trade, law professor at Brooklyn and New York Law Schools, and a former military officer who fought in the Gulf War, writes that the "failure to accord fair procedural and evidentiary standards in a trial of prisoners of war is a war crime of substantial magnitude."10
"[P]articipants in any United States military tribunal" that follows the standards set forth by the Bush military commissions order, "would be well justified in seeking counsel," says Wallach.
Francis A. Boyle, international law professor at University of Illinois, writes that the Bush military commissions violate two treaties, and that these violations are "a serious war crime." He states that Bush "has incriminated himself under the Third Geneva Convention by signing the order setting up these military commissions," and "he has incriminated himself under the U.S. War Crimes Act of 1996" which makes it "a serious felony for any United States citizen either to violate or order the violation of the Four Geneva Conventions of 1949."11
Is there any policy in the Bush administration's measures? If there is, it is an unlawful one. If there is not, someone needs to take the helm for this reckless crew, for they are endangering the safety of every American citizen and soldier.
If there is any doubt about the methods endorsed by this administration, note that the government has admittedly placed Hamdi and Padilla each in a "tightly controlled environment [in order] to create dependency."12 As the Center for Constitutional Rights said in its amicus brief for Hamdi, the government has "prolonged detention of a potential witness so that he may be interrogated at length in conditions creating psychological dependency."
With this admission, we may as well slide down the slippery slope and codify torture.
Nova Southeastern University professor of international law James Wilets says: "It sounds hyperbolic, but in some respects the United States is, legally speaking, an international outlaw."
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In addition to detention camps and those items in footnote one, note that the Department of Defense has plans to use the military in the event of a smallpox outbreak.
http://www.upi.com/print.cfm?StoryID=20021213-041745-9227r. http://laws.lp.findlaw.com/getcase/4th/case/026895Pv2&exact=1
