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Analysis: Diminishing “Geneva rights”?


From early in the U.S. government’s detention of individuals rounded up in the “war on terrorism,” the prisoners have been attempting to gain the protection of a major human rights treaty: the series of agreements known as the Geneva Conventions – a part of international law for 60 years.  The Conventions bar the use of torture, abuse, humiliation and acts of indignity against those held in captivity during wartime.

Lawyers in the Bush Administration considered them “obsolete” after the terrorist attacks of Sept. 11, 2001.  President Obama, on taking office in January, issued an Executive Order (No. 13,491) decreeing that every person “detained in any armed conflict” is entitled to the Geneva protections.

Detainees’ lawyers, however, would like to solidy Geneva rights so that they did not depend only upon presidential order.  Instead, they want the federal courts to have a role, too, with the authority to directly order the U.S. government to respect Geneva rights at Guantanamo.  U.S. District Judge Reggie B. Walton is now considering that plea in a series of cases, including Bostan v. Obama (District Court docket 05-883).

However, in  a filing with Judge Walton on Thursday, the Obama Administration — in its first formal argument on the point in court — took the position that Geneva rights cannot be enforced in court by detainees as they challenge their confinement.   That is a position the Bush Administration had taken repeatedly.  And that position has just gained new support in a federal appeals court, the Eleventh Circuit Court based in Atlanta.

The Circuit Court ruling, issued Wednesday, did not involve Guantanamo prisoners (the case, in fact, involved former Panamanian dictator Manuel Noriega, who is trying to prevent his transfer to France to be tried on new criminal charges).  Nevertheless, the decision formed a part of the Obama Administration’s argument Thursday in opposing court enforcement of Geneva rights.

In the course of making that point, the new Justice Department put new stress on a more sweeping legal claim (also made repeatedly by the Bush Administration).  The argument is that the courts have no authority, in detainee cases, to rule on the conditions of confinement at Guantanamo Bay.

Congress, the new filing argued, took away that authority in the Military Commissions Act of 2006, and the Supreme Court did not restore it last June in Boumediene v. Bush, recognizing habeas rights for Guantanamo prisoners.

Specifically at issue before Judge Walton is the Third Geneva Convention, formally known as the Geneva Convention Relative to the Treatment of Prisoners of War.  The judge called for new briefs on a long-standing claim by the detainees to Geneva rights.

The detainees’ lawyers, in response last month, contended that the Convention does apply at Guantanamo, that U.S. courts may enforce those rights, and that, if the U.S. military is unwilling to obey the Convention there, the detainees should either be transferred to another country or sent to their home countries.

Countering that argument on Thursday, the Justice Department asserted that the Geneva plea is essentially a plea for the courts to oversee conditions of confinement.  That is not within the reach of a judge in ruling on a habeas challenge, the Department contended.’

While complying with the Third Convention “constitutes an important and longstanding commitment of the United States,” the Department said, it is not enforceable by private individuals suing in court — especially those pursuing habeas petitions.  It was on that point that the Department cited the new Eleventh Circuit decision in the Noriega case.

“The habeas statute,” the Department argued more broadly, “can b e used only to challenge the fact, duration, or location of confinement, not conditions of confinement.”  And, it added, Congress in passing the Military Commissions Act nearly three years ago declared that no individual, captured anywhere in the world, may seek to enforce Geneva rights in U.S. courts.

The brief sought also to rely on a ruling earlier in the week, in Kiyemba v. Obama, finding that the U.S. government has broad authority to transfer detainees out of Guanantamo, against their wishes, without “second-guessing” by the courts.  That decision, the Department said, makes clear that the Supreme Court’s Boumediene decision was limited only to the fact and length of detention, and not to anything beyond that.

The new government brief did not seek to contest the detainees’ claims that they have been subjected to repeated violations of their Geneva rights at Guantanamo.  It said their plea for enforcement of the Convention should be denied.  But, if Judge Walton does not do so, it added, the government would then answer the factual claims, it said.