The present danger of military tribunals

...Will they assent to their own impotence when it comes to applying the rule of law beyond American borders...

...Even the basic principle of "innocent until proven guilty" seems outdated when the president describes the commissions as "a way to deliver justice to the terrorists" rather than a way to decide whether the detainees are actually terrorists...

...Since the Geneva Conventions are, in effect, a codification of the laws of war, the Supreme Court concluded that the UCMJ amounts to a congressional decision to apply the Geneva Conventions to situations like Guantanamo...

...Unfortunately, the Supreme Court decision in Hamdan v. Rumsfeld did very little to change this situation, because it evaded the crucial legal issue that was raised in the case—does a detainee like the plaintiff, Salim Ahmed Hamdan, have the right to challenge the military tribunals in a U.S...

...In the Kafkaesque world of the Bush administration, the "war on terrorism" is neither war nor peace, therefore neither civilian nor military law is applicable...

...diplomats raised this issue, pointing out that the military commissions violate a basic tenet of the rule of law: the idea that the judiciary should not be influenced by the other DISSENT / Winter 2007 • 5 COMMENTS & OPINIONS branches of government...

...According to the Military Com6 n DISSENT / Winter 2007 missions Act, defendants can still be convicted on the basis of hearsay and secret evidence...

...The new and improved Guantanamo trials still have almost all the features that outraged civil libertarians at home and our allies abroad...

...The Center for Constitutional Rights has already filed a habeas petition on behalf of twenty-five prisoners held without trial at the Bagram Air Force Base in Afghanistan...

...This also raises a larger issue about the meaning of the rule of law...

...3) Type your ms double-spaced, with wide margins...

...In the early 1990s camps were built to incarcerate tens of thousands of Haitian refugees caught trying to flee to the United States...

...In an earlier case, Hamdi v. Rumsfeld (2004), the Supreme Court did not look kindly on the president's efforts to usurp its authority and foreclose the avenue of judicial review...

...Please use inclusive language so that we don't have to make adjustments during editing...

...It remains to be seen whether the Roberts Court will accept Bush's assertion that international law is what he says it is...

...Moreover, the Military Commissions Act significantly strengthened the president's position by giving him explicit congressional approval of his system of extraterritorial penal colonies...

...2) Please don't write to ask whether we're interested in such and such an article—it makes for useless correspondence...

...In other words, detainees cannot challenge their permanent incarceration, poor treatment, or unfair trials on the basis of the Geneva Conventions...

...THE EDITORS 8 n DISSENT / Winter 2007...

...Confined offshore, they were not able to apply for refugee status in American courts...

...The European Court emphasized the importance of independent tribunals and noted that assessing the independence of a tribunal involves looking at the way that members are appointed, their term of office, and the existence of outside guarantees against pressure...

...The new, congressionally sanctioned military commissions are reminiscent of Franz Kafka's The Trial...

...They agreed at that time to grant the United States permanent control over land "required for the purposes of coaling and naval stations...

...Hardly anyone considered whether it is really such a good idea to have the military serve as judge, jury, and prosecutor when deciding the fate of its own adversaries...

...The Trial describes a world in which arbitrary power masquerades as law...

...The more controversial question is how to balance civil rights against security and whether America should pay any attention to international law in deciding on the proper balance...

...Constitution, which can only be amended through a lengthy supramajoritarian process, the UCMJ can be modified or abolished by a simple congressional majority...

...Dozens of articles about the Hamdan case celebrated it as a victory of the rule of law without really clarifying what is meant by that phrase...

...Furthermore, the career military officers who serve on the commissions are not protected from sanctions by their superior officers...

...Justice John Roberts said no when he heard the case as a member of the U.S...

...MARGARET KOHN is an associate professor of political science at the University of Florida, Gainesville, and author of two books and a dozen articles on public space, law, colonialism, and democratic theory...

...But construction work continues on a permanent prison costing more than twenty-four million dollars...

...The Military Commissions Act of 2006 was signed into law on October 17...

...We will not consider manuscripts submitted simultaneously to several publications...

...Not only are defendants and their lawyers not always able to cross-examine prosecution witnesses, they may not even know the nature of the accusations against them, if this information is classified by military authorities...

...And that is just what the Republican-controlled Congress did...

...Bush and Vice President Dick Cheney, however, felt that the existing martial law was a way of coddling terrorists and that more draconian procedures were necessary...

...In an amicus brief for Hamdan, Madeleine Albright and twenty-one other senior U.S...

...We should not be so DISSENT / Winter 2007 • 7 COMMENTS & OPINIONS proud of ourselves for guaranteeing some minimal procedural protections that we lose sight of the real function of Guantanamo...

...Its makeshift barbed-wire cells were erected to avoid legal scrutiny and oversight...

...Although the press framed the legislation as a compromise enacted to satisfy the objections of John McCain and other Senate Republicans, the White House conceded very little...

...The military commissions fail miserably on all of these criteria...

...In the novel, Joseph K. must defend himself against evidence and charges that are never described to him as he navigates a legal system that is highly bureaucratic and utterly incomprehensible...

...Instead, it relied on a much more obscure statutory basis, the Uniform Code of Military Justice...

...Court of Appeals...

...If you are submitting to Dissent electronically, our e-mail address is submissions@dissentmagazine.org . Please include a postal address and phone number...

...This violates the basic legal principle that no person can be a judge in his or her own case...

...The suit explicitly draws upon the Geneva Conventions and throws down a gauntlet to the courts...

...Although the lack of judicial independence is not an issue as visceral or compelling as torture, it is a crucial part of the new world order of Guantanamo...

...Section 6 of the legislation grants the president the sole authority to interpret and apply the Conventions...

...THE WHOLE CONCEPT of military COMMiSsions is based on the highly suspect notion that the military can be both a party to the conflict (the war on terror) and an objective judge...

...To exclude an appeal to this principle is a particularly provocative move, because habeas corpus is specifically enshrined in the U.S...

...When the case was appealed to the Supreme Court this summer, Roberts had to recuse himself, but Justice Clarence Thomas endorsed Roberts's view in his dissenting opinion, arguing that the Supreme Court had already resolved this issue conclusively in an earlier case Johnson v. Eisentrager (1950...

...But the Hamdi case dealt with a U.S...

...The British Empire foundered on this same contradiction...

...Hamdan does not answer this question...

...If the rule of law simply means that military tribunals must be authorized by Congress rather than the president, then Hamdan may yet be denounced by unidentified witnesses and convicted on the basis of secret evidence...

...Moreover, the composition of the Court in 2007 looks very different than it did in 2004...

...The many passages of the majority opinion that seem to suggest this view say only that the Bush administration has to comply with the laws of war—not because they are intrinsically binding but because Congress says so...

...Situated on the island of Cuba, the prison also is a reminder of America's role as an imperialist power...

...The most controversial provision of the new legislation is Section 7, which states that no American court or judge may hear a writ of habeas corpus filed on behalf of an enemy combatant who is not a citizen of the United States...

...It makes more sense to see the decision as a reaffirmation of the importance of the division of powers rather than the rule of law...

...Eisentrager dealt with German nationals who were tried in Nanking, China...

...This law amounts to a congressional authorization of existing practices at Guantanamo Bay...

...Or take a chance and send us your article...

...England justified its empire as a way to bring the rule of law to victims of despotism, yet failed to treat its colonial subjects the same as its own citizens...

...The United States wages war in the name of freedom and democracy, yet the prison is a reminder of the glaring contradiction between the rule of law and the war on terror...

...Guantanamo Bay is one of those naval stations...

...If there's a delay, it's because a few editors are reading your article...

...Constitution...

...In Hamdan v. Rumsfeld, the majority did not say whether the court had COMMENTS & OPINIONS the power to enforce the Geneva Conventions...

...citizen held at Guantanamo and not a foreign national...

...The Supreme Court may have been ambivalent about this point, but the Bush administration and its allies in Congress were not...

...The Hamdan decision is only a first step in this process...

...Not only is this an inaccurate characterization, but it may serve to legitimize and normalize the use of extraterritorial penal colonies...

...Members of al-Qaeda are not soldiers or citizens but stateless people confined in limbo...

...The Cubans eventually drove out the Spanish but remained under American military occupation for three years...

...The most astounding thing about the "compromise" legislation is not how little Bush conceded to his critics but how little they demanded...

...The reason is that the Supreme Court did not act on the basis of the Geneva Conventions...

...If the military tribunals were struck down by the Court, then why did Bush send a bill to Congress a few months later asking it to authorize new tribunals with most of the same disturbing features...

...In the aftermath of the Supreme Court decision, Lieutenant Commander Charles D. Swift, the military lawyer assigned to defend Salim Hamdan, was denied a routine promotion and decided to resign from the military...

...5) We're usually quick in giving editorial decisions...

...The Military Commissions Act does nothing to change this basic structural flaw...

...Habeas corpus ("show the body") is a long-standing legal principle that a person detained by the government may demand that the government provide some evidence of a crime...

...Under the new law, the military commission members are still appointed by the secretary of defense, an interested party in the conflict...

...A Right to Challenge...

...After wading through the complicated legal issues, most news reports concluded that the Supreme Court had decided that the Bush tribunals were kangaroo courts that violated the Geneva Conventions...

...The timing was clearly intended to help embattled Republicans strengthen their electoral fortunes by portraying Democratic critics of the bill as weak on terrorism...

...Look at our last few issues to see if your idea fits in...

...This is not the first time that Guantanamo has been used to circumvent the American legal system...

...The Supreme Court rejected the German petitioners' claims on the merits but added in a footnote that the responsibility for enforcing agreements like the Geneva Conventions belonged to political and military authorities rather than the courts...

...This tension between the moral ideal of the law and the realities of power can be an inspiration for selfreflection, criticism, and action...

...As the amicus brief by members of the British and European Union parliaments pointed out, the European Court of Human Rights recently overturned the conviction of Abdullah Ocalan, the former leader of the Kurdish separatist organization (PKK), because the Turkish court included one military officer among its three members...

...The Road from Guantfinamo My worry is that most Americans will remember the Hamdan decision and the Military Commissions Act as some sort of compromise that was worked out to bring our obligations under international law into line with the realities of the war on terrorism...

...Ultimately, Guantanamo will prove to be a tactical error because it is such a powerful symbol of American hypocrisy...

...Ironically, the American invasion of Cuba in 1898 was motivated, in part, by popular outrage at the Spanish use of concentration camps to crush the movement for national independence...

...Commentators enthusiastically called Hamdan v. Rumsfeld a "stinging rebuke" to George W Bush and "a clear affirmation of the rule of law...

...Today the government claims that the Guantanamo prison is a temporary measure made necessary by the exceptional circumstances of September 11, 2001...

...The legislation was carefully crafted to modify a few of the most controversial practices, such as the use of evidence obtained through torture, while maintaining most of the features of the status quo...

...THE LEFT DESPERATELY needed some good news last summer, so it was ready to claim a major victory when the Supreme Court unexpectedly struck down the military tribunals at Guantanamo Bay...

...And please remember that we can't consider articles unless they're accompanied by a cover letter and stamped, self-addressed envelope...

...How many more military officers will be willing to commit career suicide by siding with their enemies over their military and civilian superiors...

...If it is just the fact that the legislature and not the president must make the law, then the Military Commissions Act is also a victory for the rule of law, but that should be no comfort to Hamdan...

...To Our Contributors A few suggestions: (1) Be sure to keep a copy of your manuscript...

...Guantanamo Bay is not American territory and it is also not a foreign battlefield, so neither international nor domestic law applies...

...court on the basis of international law...

...In fact, the United States has criticized other countries, such as Libya and Uzbekistan, that do not have truly independent tribunals...

...The UCMJ also authorized the use of military commissions to try prisoners of war and mandated that they follow procedures consistent with the laws of war...

...The question remains, if Congress decides to flout the law of war, do the Geneva Conventions place any meaningful limitations on American actions abroad or in its extraterritorial penal colonies...

...But unlike the U.S...

...In fact, these features even outraged military lawyers, who insisted that existing court martial procedures do a fine job of balancing military necessity, fairness, and security...

...For now, it seems that the next legal battle will challenge this attempt to remove Guantanamo from the scrutiny of the courts...

...As we're not an academic journal, we prefer that they, wherever possible, be dropped altogether or worked into the text...

...Section 5 of the Military Commissions Act states, "No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States . . . is a party as a source of rights in any court of the United States or its States or territories...

...THE PRISON AT Guantanamo Bay has long been a mobilizing symbol for opponents of the American approach to the war on terrorism...

...This law was passed by Congress in 1950 and outlined uniform procedures for all branches of the military to follow in conducting courts-martial...

...4) Notes and footnotes should also be typed double-spaced, on a separate page...

...Even the moderate justices on the Court worry that placing military tribunals exclusively in the executive branch, with no authorization from Congress and no oversight by the courts, is a dangerous concentration of power and one that is antithetical to the principles of American government...

...Check all your figures, dates, names, etc.—they're the author's responsibility...