The US Supreme Court's decision in four cases brought by detainees of the "war on terror" has important consequences, both for the Bush administration, and for US law, writes Ahmad Naguib Roushdy* On 2 September 2004, President George W Bush delivered his speech before the Republican Party National Convention in New York City, accepting his party's nomination for re-election as president of the United States. His audience was a nation divided as much as it ever was during the war in Vietnam. The president was booed and sneered by a large crowd in the streets around the convention site; and on the following Sunday, there was a demonstration which brought out at least a quarter of a million people of all ages, from many different states, and from almost every political and religious affiliation. They marched through the streets of New York, carrying signs and cheering, demanding the president's resignation or impeachment, and calling him bad names. Among the signs were some calling for the immediate restoration of civil rights and the end of the "police state", as they call the Bush regime. Other signs called for withdrawal from Iraq, and for stopping support to Israel. Certain groups of demonstrators even carried signs proposing a revolution in the United States. I had a chance to witness this outpouring of public feeling first hand. Having spent years observing American society, first as a student and later as a practising lawyer, I can say that the demonstration bore a strong resemblance to those against the war in Vietnam when Johnson and Nixon were in the White House. I saw very angry faces -- men, women and children, even war veterans in wheelchairs and on crutches. Today, the country is divided not just by the bad economic conditions. High consumer prices, high unemployment rates, lack of affordable health insurance and medicine, and the vanishing of the middle class, were all strong issues in the presidential election campaign. But what has really aggravated the fissure at the heart of American society is the ongoing infringement of civil liberties and the senseless war in Iraq. In the view of many intelligent commentators, the United States' invasion and occupation of Iraq has plunged the country into a quagmire that has smeared its stature worldwide. And for many ordinary people, it is still a puzzling and a frightening experience to see how a strong and rich democracy, imbued with idealistic values, has stooped so low as to invade Iraq on a false pretext shored up by faulty intelligence. They do not understand how the country has allowed its troops to kill Iraqi civilians and destroy their homes, as well as to commit such horrific acts of torture and rape as those witnessed at the Abu Ghraib prison west of Baghdad and at other military prisons in Iraq -- acts which are so reminiscent of other acts committed long ago in Vietnam. How can a democratic government suspend the constitution, local laws and international treaties that protect civil liberties and prisoners of war, in the name of national security, in order to prosecute what it calls a "war on terror", but whose bluntest effects are actually directed against American citizens and foreign detainees? Can democracy allow that? In his book, Human Rights and the Empire (2001), A W Brian Simpson cites the views expressed in 1943 by Winston Churchill concerning the respect of human and civil rights in time of war. Britain was then facing possible destruction at the hands of Hitler's regime -- a regime that was guilty of mass murder and arbitrary detention both in Germany and in the European territories it occupied during World War II. Churchill's words were as follows: "The power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgement of his peers, is in the highest degree odious, and the foundation of all totalitarian government, whether Nazi or communist." That statement by Churchill was surely intended as a recitation of the rules to be applied in a democratic regime, as well as a recapitulation of The Hague Conventions of 1907 on the treatment of civilian inhabitants and prisoners of war, to which England was a party. Almost six decades later, the media reported that President Bush now has Churchill's bust prominently displayed on his desk -- a gift from Tony Blair, his friend and staunchest ally in the war against Iraq. Does this mean that the man in the White House now believes that he is the Churchill of the 21st century, fighting against the so-called "Islamic terror", just as Churchill once fought Nazi terrorism? Yet if Bush is trying to show that he is a good student of Churchill by displaying the latter's bust on his desk, he has failed to convince. For the Bush government has repeatedly violated the very human rights it claimed to have invaded Afghanistan and Iraq in order to restore. In early spring of 2004, the American media reported that Iraqi prisoners at Abu Ghraib prison were being subjected to torture and inhumane treatment. They were regularly gagged, bound, hooded, beaten (one top Iraqi general died in the process) and made to suffer various kinds of physical and psychological assault and humiliation. It was also reported that prisoners captured during the US invasion of Afghanistan, or arrested as terror suspects, had already been detained for more than two years in solitary confinement at the US Guantanamo Bay naval base in Cuba and in Charleston, South Carolina. These prisoners were kept indefinitely on their own in unhealthy cells, with no charges filed against them in a neutral court of justice. They had no access to lawyers and could not receive visits from their families or from representatives of the International Red Cross Committee or other human rights organisations. This treatment not only violated international law and human rights principles, but also was a grave breach of the United States Constitution and laws. Some US courts upheld the government's practices and ruled that a war-time president had the right to indefinitely detain anyone, whether a US citizen or not, who had been captured as an enemy combatant on the battlefield, or arrested for being a terrorist suspect. By doing so, these judges revived the horrific spectres of such mediaeval gaols as the Tower of London or the Bastille of Paris. Their judgements were subsequently appealed to the United States Supreme Court. Angry and outraged, Senator Edward Kennedy of Massachusetts, in his speech to the Democratic Party National Convention in Boston in late July of this year, hit the bull's eye when he attacked the Bush administration's dictatorial policy of infringing civil liberties in America, while pursuing the invasion and colonial rule of Iraq. Kennedy, an outspoken liberal, received thunderous applause from the massed delegates when he declared that in the November presidential elections the Democrats would make sure President Bush was sent back to his Crawford, Texas ranch. As for Vice-President Dick Cheney, Kennedy promised that he would be dispatched to "an undisclosed location". The convention audience went wild at this unmistakable reference to the Bush administration's policy which Cheney had drafted, together with Defense Secretary Donald Rumsfeld. Ironically, though, it was Kennedy himself who soon found himself being treated as a terror suspect the next time he tried to fly out of Washington. According to news reports, Kennedy was refused boarding because he had been "blacklisted" -- thus suggesting that he had been framed by someone in the government who wanted to punish him for his outspoken statements. Kennedy angrily commented that if he was treated this way as a prominent US senator, what might not happen to other ordinary travellers? Kennedy delivered his speech after the United State Supreme Court had delivered its judgements on 28 June 2004 in four cases filed by detainees at Guantanamo Bay and Charleston, South Carolina. It has been reported recently that a small number of cases has now been filed by Iraqi detainees at Abu Ghraib too. The claims in the cases before the Supreme Court were unrelated to charges of torture or abuse. Instead, the complainants were simply objecting to the fact that the government had denied them their basic civil rights under both the Constitution and laws of the United States, and the Geneva Conventions of 1949. The detainees' silence with regard to possible torture and abuse has raised some eyebrows. As reported by the media last spring, and more recently (17 October) by The New York Times, the mistreatment of detainees originated at Guantanamo Bay, and subsequently migrated to Abu Ghraib. This genealogy was effectively kept secret until the incidents at Abu Ghraib were exposed. It appears that the detainees in both prisons were systematically tortured to force them to cooperate with interrogators who were trying to gather information about Iraqi leaders and so-called Iraqi "insurgents", as well as specifically about terrorists and Al- Qaeda. Unless the claimants in the cases before the Supreme Court were an exception to this rule, their failure to mention torture in their petition can only strike us as strange. Still, we can guess from something one of the Supreme Court justices said during the court's session that the incidents at Abu Ghraib were at the forefront of the judges' minds while they were considering these cases. During the oral argument on 28 April, the government was represented by the Department of Justice solicitor general. The administration's lawyer set out to describe the exceptional security situation after 11 September which in his view justified the suspension of judicial guarantees for the prisoners and the immediate necessity to interrogate and detain them indefinitely. He was interrupted by Justice Ruth Bader Ginsberg, one of the court's more moderate justices, who quizzed him, saying: "What if we are torturing the prisoners?" Of course, her question was, in form at least, hypothetical: she meant to ask whether the prisoners would be tortured if they refused to answer the investigators' questions. But the government lawyer, taken by surprise, seemed to take her categorically. He answered abruptly: "No, we do not do that." There are two possible explanations for this brief exchange. Either the solicitor general was unaware of the crimes being committed at Guantanamo and Abu Ghraib, despite the fact that some sketchy reports about mistreatment of prisoners had already appeared in the newspapers in March 2004. Or he was trying to cover them up. Yet something happened later that same day which must have made him feel that Justice Ginsberg had had an inspired intuition. In the evening of 28 April 2004, the CBS network's "Sixty Minutes" programme unveiled for the first time the horrific photographs of torture and rape which have since become so infamous. The programme definitively broke the news of the physical and psychological abuses being committed by American military personnel on Iraqi men and women detained at Abu Ghraib. Within hours, the scandal had spread all round the world. If CBS was the first to show these photographs, the credit for revealing the gruesome facts behind them must go to Seymour Hersh. A renowned columnist and writer, Hersh had won the Pulitzer Prize in 1970 for blowing the cover on the My Lai scandal in Vietnam, where US Lt William Calley, Jr was accused of having deliberately murdered at least 109 Vietnamese civilians. More recently, he had dared to criticise the Bush government for its unpreparedness for the attack of 11 September and for many of its acts in the wars in Afghanistan and Iraq, at a time when many, notably in Congress and the media, feared to do so. In a series of three articles in The New Yorker magazine dated 10, 17 and 24 May, Hersh gave the first detailed accounts of what was going on at Abu Ghraib prison, and described how since 11 September torture, physical coercion and sexual humiliation had become a systematic policy of the United States Defense and Justice departments. In his 24 May article, little more than a month before the Supreme Court announced its decisions, Hersh revealed that the fact that torture was being used at Abu Ghraib was first exposed to US army investigators on 13 January 2004, when Joseph Darby, a young military police specialist at the gaol, had reported various incidents to the Army's Criminal Investigations Division, providing them with a CD full of incriminating photographs. Within three days, on 16 January, a report on the subject had been presented to Rumsfeld, who in turn informed President Bush. Hersh recently re-affirmed his claims about specialist Darby in his new book, Chain of Command. In his introduction to the book, David Remnick, the editor-in-chief of the New Yorker, says that Hersh had informed him last spring that he was in possession not only of the horrendous photographs of torture at Abu Ghraib, but also of a copy of a report by US Major General Antonio Taguba who was in charge of investigating the incidents. According to Remnick, Hersh mentioned to him that he was preparing a report on the subject and that CBS was also in possession of the photographs, but had postponed broadcasting them at the request of the Pentagon. Remnick told Hersh that he should not wait any longer but should publish his report immediately. When CBS learned of Hersh's intentions, it rushed ahead with the broadcast of the photographs, in the hope that the scoop might improve its deteriorating rating. On the evening of 28 April, CBS anchorman Dan Rather stated that the network had delayed airing the report on the scandal after an appeal from the chairman of the Joint Chiefs of Staff. He added that, "with other journalists [as it later turned out, there was only Hersh] about to publish their versions of the story, the Defense Department agreed to cooperate in our report." Hersh was not prepared to wait any longer. Details of the incidents and photographs, including some that CBS had not shown, were posted immediately on the New Yorker 's website. On 10 May, the print edition published Hersh's detailed story, which went on to provide the basis for many newspapers articles and radio and TV reports on "the Abu Ghraib scandal". It seems clear that had CBS not discovered that Hersh was going to break the story, they would not have risked antagonising the Pentagon by broadcasting the photographs. In a statement which appeared in the aftermath of Hersh's article on the torture incidents, the New York Times admitted that the American media was under pressure from the Bush government, mostly in the form of threats of retaliation, not to criticise its war policy. The paper even went so far as to apologise to its readers for withholding the truth from them. When the news broke, the public were shocked and outraged. Many in the US turned angrily on their government, especially the families of the American soldiers in Iraq and Afghanistan, and those of the victims of 11 September. The International Red Cross, along with many other human rights organisations, demanded an investigation and access to the prisoners. And above all, everyone kept asking how a country which repeatedly claimed to be the cradle of democracy and freedom could have sanctioned such barbarity. Of course, they did not realise that when he talked about freedom, the president was talking about a different America. Last June, President Bush called on all communities of all abiding nations to prohibit, investigate and prosecute all acts of torture. But he only did this after the torture incidents at Abu Ghraib had become publicly known. Yet he himself knew about the Abu Ghraib scandal as early as January 2004. He also knew that what was happening there was wrong, illegal and contradicted the values on which the United States had built its international obligations. But despite knowing so much, and bearing so much responsibility, he has never apologised. America's revolutionary leaders turned to the French philosophers, jurists and intellectuals of the Enlightenment when developing the principles that were enshrined in the US Constitution in 1789, some 13 years after their declaration of independence from the British Empire. In particular, it was Montesquieu's treatise De l'esprit des lois ( On the Spirit of the Law ), published in 1748, that provided those who drafted the Constitution with a touchstone and a guide. In this book, Montesquieu described how principles of justice had governed ancient societies before the enactment of written laws, and argued that legislation should never be unjust. The founding fathers of the United States were keen to declare in the preamble of the new Constitution, that they were promulgating it in order "to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity." These are idealistic principles -- principles that once helped build the welfare state, in a society that was strong and free of fear. But it seems that George Bush Jr has been following a different constitution from the one the founders of his country had drawn up -- a constitution created by the neo-conservatives in the Bush administration, and which is quite happy to ride roughshod over all democratic principles and human rights. The justices of the Supreme Court cannot isolate themselves from public events. They are inevitably aware of the political and social environment in which they operate as they seek to protect the basic principles of law and justice. This much was obvious from the suggestion made by Justice Ginsberg to the solicitor-general. It is very difficult for the moderate judges who sit in the court, and even for someone like Chief Justice William Rehnquist, who is a conservative, but not one who would tolerate the infringement of civil liberties, to close their eyes when exercising their duties. Indeed, it is precisely the duty of the Supreme Court under the Constitution to subject the other two branches of the government, the executive and the legislative, to judicial review when it is believed they may have breached the Constitution or the laws of the United States. The four cases brought before the Supreme Court thus raise at least two important issues. The first is whether a court of law can consider facts not presented in the case before it. The second is what principles the Supreme Court of the United States has established in its recent judgements in those four cases. These two issues will form the subject of the second part of this article. * The writer is an international lawyer based in Cairo and New York.
