Background on President Bush's New Detainee Policy

 

On November 13, 2001, President Bush issued an executive order allowing for trial of “enemy combatants” by military commission.  The Commissions were not based on any established system of law – instead, the order stated quite clearly that anyone who was tried pursuant to the order would not have the ability to invoke rights under any other body of law, international or domestic. 

Amnesty International has had a legal observer present at all but one of the proceedings before the commissions.  Through analysis of the rules and first hand observations, Amnesty International has concluded that the alleged “war crimes” trials being held in Guantanamo did not meet international fair trial standards and were an affront to justice.

Salim Ahmed Hamdan was one of the first four detainees identified for trial by military commission.  His attorneys filed a habeas corpus case challenging his trial by military commission  - both the fairness of the proceedings and the president’s power to convene them.  The first pretrial proceedings in Hamdan’s case commenced in August of 2004.  In November of 2004, a federal district court ruled that the US could not try Hamdan by military commission, citing both rights under the Geneva Conventions and the fairness of the proceedings.  The military commission proceedings in all four initial cases were stayed pending appeal.

In July of 2005, a three judge panel on the federal appeals court, including now Chief Justice Roberts, ruled that the commission could go forward as currently constructed, and that Hamdan could not invoke rights under the Geneva Conventions.  Since that time the government has charged an additional six men and held pre trial proceedings in some of those cases. 

On June 29, 2006, the Supreme Court issued a sweeping decision that found the commissions as currently constructed to be invalid.  The Court held that the President did not have the authority to convene military commissions that deviated so far from established procedures without specific Congressional authorization.  In addition, the Court ruled that the commissions must be in line with the due process protections found in the Uniform Code of Military Justice and Common Article 3 of the Geneva Conventions, which prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”    

Recently, President Bush announced that 14 “high value detainees” who had been in secret CIA prisons, including the purported masterminds of the September 11 attacks, had been transferred to Guantanamo and were awaiting trial by military commission.  President Bush has also sent Congress draft legislation to authorize military commissions very similar to those already struck down by the Supreme Court.  In addition, he is asking that Congress to retroactively strip habeas corpus and to provide immunity from prosecution for civilians, CIA agents and administration officials who may have violated the War Crimes Act.  Amnesty International will continue to insist that any legislation meets the basic fair trials protections and standards for treatment required by the Supreme Court and US and International law.