To the Readers Of The Metropolitan Corporate Counsel :
The Association has continued its active involvement in efforts to ensure that the interests of national security and civil liberties are approached in a balanced way in the country's response to terrorism. We have been active both in the courts and in Congress in working to counter-balance what our committees believe have been policies that facilitate the use of torture in interrogating detainees and that deny people who are being indefinitely detained the right to contest their detainment.From the outset, we have asserted that national security is of crucial importance, but we must not lose our basic respect for the rule of law. December was a particularly busy month on this front, and I want to report to you on what we did.
In Congress, we supported an amendment proposed by Senator John McCain to the Defense Appropriations bill that is designed to bar the United States from subjecting detainees to torture or cruel, inhuman or degrading treatment. Detainees held by the U.S. government in Iraq and Afghanistan and other sites around the world have been subject to torture and abuse. We believe the McCain amendment simply implements existing U.S. law and treaty obligations. In negotiating this amendment, the Bush Administration sought to exempt the CIA from this ban. It has been widely reported that the CIA operates secret detention facilities around the world, and there have been numerous allegations that prisoners are abused in these facilities, with some charges having been brought. The Bush Administration has argued that U.S. law only bans the cruel, inhuman and degrading treatment of detainees held on U.S. soil. We and others have vociferously disagreed with that interpretation, and the McCain amendment unequivocally applies to all situations where the United States is holding detainees.
The McCain amendment was passed, but at a price. It was coupled with an amendment originated by Senator Lindsey Graham that would deprive detainees at the Guantanamo Naval Base of the right to bring habeas petitions in the federal courts. This has been their principal means of challenging what detainees claim to be brutal conditions of confinement, the indefinite nature of their detention and whether their detention comports with laws and treaties that bind the U.S. government. In addition, the Graham amendment appears to have opened the door to the use of evidence obtained through the use of highly coercive techniques, at least in the status review tribunals. This "torture by the backdoor" could seriously undercut the unequivocal prohibition on torture and abusive interrogation techniques in the McCain amendment.
While Congress was debating these amendments, litigation was proceeding in two key detainee cases, and the Association is involved in both. In Hamdan v. Rumsfeld, a detainee who has been charged before a Military Commission is contesting the legality of the Commission.The Association has filed briefs in the Hamdan case in both the DC Circuit and the Supreme Court, focusing on one aspect of the case: the failure of the procedures to comply with Common Article 3 of the Geneva Conventions. This Article serves as the fail-safe protector of rights for persons involved in conflicts covered by the Conventions. While not as extensive as protections given prisoners of war, Common Article 3 sets forth basic needs that must be met, and due process protections that must be afforded should the detaining authority seek to impose sentence on the detainees.
Our brief argues that Hamdan and other similarly situated detainees are covered by Common Article 3, that the Military Commission process does not provide the basic due process that Article 3 requires, and that the Treaties are enforceable by individuals. The case is now pending before the Supreme Court, though we are not clear whether the case survives the Graham amendment. Our thanks to Akin Gump Strauss Hauer & Feld LLP for its efforts in representing the City Bar in this matter.
We also filed amicus briefs in Padilla v. Hanft, both in the Fourth Circuit and the Supreme Court. You may recall that Padilla was the U.S. citizen who was picked up in a Chicago airport, detained and eventually labeled an enemy combatant. The government first claimed he was planning to detonate a "dirty" nuclear device, then asserted he intended to set explosions in apartment buildings. He has spent more than three years in detention, and the government has fought against his having a hearing. Indeed, after the Fourth Circuit ruled in the government's favor and Padilla sought Supreme Court review, the government decided to try Padilla on criminal charges having nothing to do with the avowed purpose of his detention. The Fourth Circuit sharply questioned the government's motivation in making this switch, suggesting it was seeking to evade review of the Fourth Circuit decision.
The City Bar believes this case tests the administration's thesis that it can indefinitely detain anyone, anywhere, with the detainee having no rights whatsoever, simply by labeling the person an "enemy combatant" and that this action is not reviewable by the courts. Padilla was picked up and detained far from the "battlefield," without any of the exigencies that involve the immediate detentions of prisoners of war and other combatants. We have argued in this case that Padilla is entitled to basic due process rights, including the right to counsel. (Counsel was appointed for Padilla at the outset because he was first held as a material witness.) We appreciate the efforts of Willkie Farr & Gallagher LLP in representing the Association's interests in this matter.
The City Bar will continue its efforts in these and related matters. We do so out of our concern that the balance of power in our government, and respect for the rule of law, is in jeopardy.The President has not only asserted an unreviewable right to indefinitely detain, incommunicado, anyone at any time, should he deem the person an enemy combatant. He also argues that his war-making powers under Article I of the Constitution allow him to override any law or treaty in exercising those powers. As he has undertaken a "war on terrorism," with no end in sight and no limits in its location, the scope of powers he claims would be unprecedented in our nation's history. The administration's assertion that the use of interrogation techniques generally considered to involve torture, and the domestic surveillance undertaken in apparent contradiction of the Foreign Intelligence Surveillance Act, are legitimate under his war-making power, are examples of the scope of power contemplated.
While lines may be difficult to draw, we cannot agree that the nation's founders, fully aware that their young country would be facing great crises, intended - or designed the government - to be run by the Executive without the essential checks and balances that have served us so well.