Letter to IHT Moley

Ambassador Moley and Guantanamo
16 December 2003 (published in part on 19 December 2003, IHT, page 9)

Ambassador Moley's attempted defence of the untenable remains unconvincing, and reference to Lewis Carroll does not make it any more plausible. Lord Johan Steyn's important London lecture requires deeper reflection about the rule of law and the values which we Americans espouse. I thoroughly agree that Guantanamo entails “a monstrous failure of justice”, unworthy of a great nation like the United States, which could and should be the example for the world. President Jimmy Carter articulated the malaise of many informed Americans that the detainees “have been held in prison without access to their families or a lawyer, or without knowing the charges against them. We've got hundreds of people, some of them as young as 12, captured in Afghanistan, brought to Guantanamo Bay and kept in cages for what is going on two years. It's difficult for international aid workers to spread the message of human rights to places like Cuba, Africa and the Middle East when the US government doesn't practice fairness and equality”. (Carter Center, 15 Sept. 2003)

Not without reason the most respected neutral observers like the International Committee of the Red Cross, Amnesty International and Human Rights Watch have repeatedly alerted public opinion to the grave violations of international law that are being perpetrated in our name. Personally, as a registered Republican who voted for Bush in 2000, I am profoundly against the military-.junta like policies manifested by this administration after 9/11.

As to the so-called “legal black hole”, I would like to remind non-lawyers that as “nature abhors a vacuum” (Baruch Spinoza), law does not like black holes either. Indeed, there are three legal regimes that apply and that are being violated with impunity. 1) the international human rights regime. The United States is bound by the International Covenant on Civil and Political Rights and by the Convention Against Torture, both of which require protection of all persons “within the jurisdiction” of a State party, notwithstanding whether the person is a citizen or whether he is formally within the sovereign territory of the State. The detainees thus have a right to habeas corpus , due process and humane treatment. 2) The international humanitarian law regime. Article 5 of the Third Geneva Red Cross Convention of 1949 provides that if there is doubt about the status of detainees, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal”. Neither the President nor the Secretary of Defence is competent under the Convention to make a determination of prisoner of war status. 3) The US Constitution and the Bill of Rights must be deemed to apply, since neither excludes application in US military bases such as Guantanamo. Indeed, the US District Court for the Eastern District of New York applied the US Constitution to the Haitian refugees being held in Guantanamo in the 1990's ( Haitian Ctrs. Council v. Sale ). The current denial of application of the Constitution to the current Guantanamo detainees goes back to an obsolete 1950 judgment of the Supreme Court, which, hopefully, will be overturned by this Supreme Court in 2004. In a landmark dissenting opinion in Johnson v. Eisentraeger , Justice Black wrote: “ Habeas corpus , as an instrument to protect against illegal imprisonment, is written into the Constitution. Its use by courts in my judgment cannot be constitutionally abridged by Executive or by Congress. I would hold that our courts can exercise it whenever any United States official illegally imprisons any person in any land we govern. Courts should not for any reason abdicate this, the loftiest power with which the Constitution has endowed them” It is time for the Supreme Court to align itself with the three 1950 dissenters and to reject the anachronistic interpretation of the Constitution in Johnson , as former Supreme Courts have in the past reviewed and reversed prior jurisprudence, e.g. when the segregationist 1896 judgment in Plessey v. Ferguson was finally overturned.

Former President Jimmy Carter recently repeated his concern over the situation in Guantanamo “because this is a violation of the basic character of my country and it's very disturbing to me” (Carter Center, 11 November 2003). The situation is grave enough to disturb all Americans.