WASHINGTON, 29 November 2004 — A new version of “The Good, the Bad and the Ugly’’ opened in Washington this month.
The good was US District Judge James Robertson’s ruling that the military commissions used at Guantanamo Bay, Cuba, to prosecute detainees are unlawfully constituted. His ruling challenged the novel “combatant status review tribunals’’ on grounds that they deny accused terrorists and other detainees hearings to determine their prisoner of war status, as required by international law.
The bad was President Bush’s nomination of Alberto R. Gonzales as attorney general. Gonzales was a key contributor to the administration’s legal rationale for using torture and other questionable interrogation methods on terrorist suspects.
And the ugly was departing Attorney General John Ashcroft’s remarks to a Federalist Society convention that the judiciary, including the US Supreme Court, should cease “oversight and second-guessing of presidential determinations’’ on terrorism and treaty law “in a time of war.’’
Since the war on terror was declared, the administration has invoked the law of war to prevent accused terrorists from being subject to criminal law procedures.
The Supreme Court and other federal courts have recently begun to roll back this legal strategy that denies detainees due-process rights. The administration should act independently to repair the damage it has done and uphold the one value — rule of law — that unites Americans and the world. Here’s how to start:
The Pentagon should cut its losses and dismantle the military commissions. If any detainees are to be prosecuted for war crimes, the proceedings should be comparable to a court-martial. Terrorism cases should be prosecuted in federal criminal courts.
At his confirmation hearings, Gonzales should pledge that, as attorney general, he will repudiate his “torture memoranda’’ and promise that the future treatment and interrogation of terrorist suspects will comply with widely accepted interpretations of the Convention Against Torture, the International Covenant on Civil and Political Rights, the Geneva Convention and relevant international customary law long accepted by the United States.
The White House should assemble qualified officials to expedite review of all cases involving US-held detainees worldwide. Review guidelines should reflect these factors:
— When possible, detainees should be divided into those who were insurgents or military combatants in the territory where they were seized (such as Iraq and Afghanistan) and those acting to advance international terrorism.
— Detainees who were insurgents or military combatants in Iraq and Afghanistan should be accorded prisoner-of-war status and treated as such.
— Detainees classified as terrorist suspects but who generally satisfy POW criteria under the Geneva Convention may be categorized as prisoners of war and detained for a longer period.
— Whether accorded prisoner-of-war status or not, all detainees in US custody should be treated humanely and receive due-process rights.
— Any American citizen detained as either a prisoner of war or as a terrorism suspect should be transferred to the United States, granted full due-process rights, investigated and — if merited — prosecuted in a federal court for war crimes, violation of anti-terrorism laws or treason.
— The duration of armed conflict in Iraq and Afghanistan, and of the war on terror, should be constantly reviewed by the administration because it affects how long prisoners of war are held.
— The Defense Department should announce again that the International Committee of the Red Cross will be afforded full and immediate access to US detention facilities including in Iraq, Afghanistan and Guantanamo Bay.
— Finally, the White House should appoint a deputy counsel whose primary responsibility would be to advise the president on US compliance with international-law obligations related to the nation’s foreign, military and trade policies, including treatment and disposition of combatant and terrorist detainees.
