Room for a View > Briefs
by Todd Paul and Lorna Tychostup

Detainees: No News is Bad News

In the nearly 10 months since the attacks of September 11, thousands of suspected terrorists or “material witnesses” have been detained by the US government, many at Guantanamo Bay, Cuba, and some in Afghanistan itself. Many have been released, but hundreds are still being held under conditions of secrecy that violate US and international law.

“There continues to be a disturbing level of secrecy surrounding the detentions, which has made it difficult to monitor the situation,” states a recent Amnesty International report. “A significant number of detainees continue to be deprived of certain basic rights guaranteed under international law. These include the right to humane treatment, as well as rights which are essential to protection from arbitrary detention, such as the right...to be informed of the reasons for the detention; to be able to challenge the lawfulness of the detention; to have prompt access to and assistance from a lawyer; and to the presumption of innocence.”
In a May 29 letter to Secretary of Defense Donald Rumsfeld, the group Human Rights Watch notes that a reported 384 prisoners being held at Guantanamo Bay, and approximately 150 more in or near Afghanistan, have not been granted prisoner of war status under the Geneva Convention. The Bush administration has argued that these are not members of a recognized army, and that the Geneva Convention therefore doesn’t apply. But there is a legal test for this which does apply. “When there is doubt as to [a detainee’s] status, Article V of the Third Geneva Convention requires the United States to convene a ‘competent tribunal’ to apply the legal rules on a detainee-by-detainee basis, and to treat detainees as POWs until the tribunal determines otherwise,” HRW’s letter states. “Until now, the United States has never taken exception to this straightforward and appropriate rule: During the Gulf War, for example, more than one thousand Article V tribunals were convened.”

Questions about detainees have provoked very guarded responses from the US, with the result that family members and attorneys attempting to aid them have in many cases been unable to obtain such basic information as whether a specific person was detained, where he was being held, and on what charges. Amnesty International is especially concerned about the large number of “material witnesses” detained on minor INS charges, or in some cases on no charge at all. Under US law, the INS may detain people without charge for up to 48 hours, or for a further undefined period in “an emergency, or in other extraordinary circumstances.’’ According to AI, several post-September 11 detainees were held for more than 50 days before being charged with a violation.

Of particular concern is the legal status of al-Mujahir, aka Jose Padilla, who is being held as an “enemy combatant” without being charged or given access to an attorney despite, or perhaps because of, an apparent lack of evidence that would convict him of criminal behavior.
In Padilla’s case, “The president is claiming unfettered power to circumvent the justice system and its safeguards of basic rights,” said Kenneth Roth, executive director of Human Rights Watch. “There should be a strong presumption that anyone arrested in the United States, far from any battlefield, be granted the full legal protections of the criminal justice system—including the right to counsel and not to be held without charges. Simply accusing someone of working with al Qaeda does not justify throwing him into a navy brig.”

Roth commented further: “The US government apparently wants to be able to question al-Mujahir while holding him incommunicado. But the government’s legitimate desire to obtain information about terrorist threats does not entitle the president to assume unlimited powers to place in military custody anyone he identifies as a terrorist.”

—TP

Should Presidents End Treaties?

Last month, the president of the United States unilaterally withdrew our country from the 30-year-old Anti-Ballistic Missile Treaty with Russia. In Alaska, US Defense Department workers and contractors immediately began work on underground silos, part of an anti-missile test site.
But some in the House of Representatives are questioning what they say is an usurpation of congressional power by the executive branch. Led by Rep. Dennis J. Kucinich (D-Ohio), 30 Democrats and one independent have filed suit in federal court, saying Bush violated the US Constitution by acting without the assent of Congress.

“The president can’t pick and choose the laws he wants to repeal,” Kucinich reportedly said. “We are taking this step to protect the right of Congress to take part in the lawmaking process.”

The Constitution provides that when presidents enter into treaties, they must be ratified by a two-thirds vote of the US Senate, as happened in 1972 when President Nixon and General Secretary Brezhnev signed the ABM Treaty in Moscow. But the Constitution does not specify how to withdraw from a treaty.

The Kucinich lawsuit argues that since treaties become part of federal law once ratified, they should be treated like any other law. In a public statement, Kucinich explains: “The Constitution empowers Congress to establish laws, and charges the president with carrying out these laws. Nowhere does it give the president power to repeal laws. Only Congress has the authority to undo its work.”

When President John Adams wanted to withdraw from alliance treaties between the US and France in 1798, he signed an act of Congress. So did President James Polk when he wished to withdraw the US from the Oregon Territory Treaty with Great Britain in 1846. In fact, cooperation between the president and Congress is the norm in this area, with a few exceptions.

The most significant exception came in 1978, when President Jimmy Carter unilaterally terminated this country’s mutual defense treaty with Taiwan. In reaction, the Senate considered a joint resolution which would have required the approval of the Senate and the House before a president could terminate any defense treaty. But Congress never took final action on the proposal.

Sen. Barry Goldwater (R-Arizona) filed a lawsuit against Carter in a federal court. The Supreme Court eventually dismissed the case, in part because Congress had not “taken action asserting its constitutional authority.”

Rep. Maurice Hinchey (D-New York), who has joined the Kucinich lawsuit, says he hopes the Supreme Court will rule differently this time.
In a statement on the new warhead-reduction treaty between the US and Russia that is supposed to take the place of the ABM, Kucinich said the following:

“There is little evidence that dissolving the ABM Treaty will do any more than allow defense contractors to capture ever-greater sums of money from the federal government. And there is considerable evidence that the unpredictable, every-nation-for-itself nuclear policy set to replace the ABM Treaty architecture will be destabilizing.”

So far, the missile defense program, a holdover from President Ronald Reagan’s two terms, is expected to cost $200 billion.

–TP
Sources: New York Times, Washington Post, Guardian, Casper Star-Tribune, National Public Radio

Arctic Drilling Shifts to National Petroleum Reserve

According to the newsletter Arctic Truth, published by The Wilderness Society, the Bush administration leased to oil companies more than 60 tracts covering 579,269 acres of the National Petroleum Reserve-Alaska last month.

The NPR-A is the largest expanse of undeveloped public land left in America, 23.5 million acres of prime wildlife habitat. It was established by the US government in 1923 as an emergency oil reserve to be tapped only in times of pressing national need. By contrast, the Arctic National Wildlife Refuge, where drilling was narrowly averted by a vote in Congress, is 19.6 million acres.

According to an article in the LA Times, “The Clinton administration started recent exploration within the reserve, signing leases on 1 million acres in the northeastern section nearest the Prudhoe Bay and Kuparuk oil fields in 1999. At the time, there was speculation that the move could help take development pressure off the Arctic refuge, 100 miles to the east.

“But the Bush administration has moved forward on both fronts, citing the nation’s dependence on volatile foreign oil suppliers.”
It was previously thought that there was significantly less oil in the NPR-A than in ANWR, where Bush was recently prevented from drilling by a no-vote in Congress. But recent studies by oil companies and the US Geological Survey have found five times what was expected in the petroleum reserve—as much or more oil than in the ANWR.

Traditionally, certain “special areas” within the NPR-A have not been leased for oil drilling because of their environmental value and sensitivity to development. But as the Bush administration continues to lease more land for drilling, no permanent protections for these areas have been established.

Despite the fact that it is not a wildlife reserve area, the NPR-A is an extremely important habitat for many species:

The NPR-A contains the calving grounds and summer range for the 450,000-member Western Arctic caribou herd—the nation’s largest—and the 25,000-member Teshekpuk herd.

Polar bear denning sites have been found on the NPR-A. The United States pledged to protect denning habitat under an international agreement signed in the 1970s.

Wetlands in the NPR-A serve as breeding grounds for over five million waterfowl and shorebirds each year.

No congressional vote is required for drilling in NPR-A, and many environmentalist groups that fought to protect ANWR seem unmoved to put up a similar fight over NPR-A. In fact, since Bush declared the country to be in a state of national emergency on September 14, 2001, there seems to be little legal recourse to stop this drilling.

—TP