Aside from Iraq, George Bush's most transgressive, flagrant flouting of law was establishing a scheme of indefinite detention and military trials at Guantánamo (history here); there the well-documented contempt for international and US domestic law has persisted for years, with a scaffold of purported legality cobbled from extrajudicial acts, political inaction and appellate court acquiescence.
It's been mostly unlawful from the outset: the secret confinement and torture of invented "illegal enemy combatants" (many of them lawful belligerents); the treatment of men as "war prisoners" who were apprehended (rarely by Americans) for suspected civilian terrorism.
Compounding all that, the arbitrary denial of prisoner of war status hearings, in an "international" conflict that should have attracted full Geneva Convention protections.
Even the protections of Common Article Three, applicable to "non-international" conflicts, were denied, and Pentagon officials who attempted to provide Geneva protections were sacked (Rick Baccus), bullied (Stuart Couch) and even jailed (Matthew Diaz).
Lt Comdr Diaz: jailed for sending Guantánamo names to the Centre for Constitutional Rights
Internationally non-compliant military trials were set up, trials that, as law profs David Glazier and David Frakt argued, could themselves be classified as war crimes, and it was all done to avoid legal civilian trials, now rendered impossible because they are tainted by torture and cruelty in violation of the Convention Against Torture.
Most "convictions" for non-crimes have been overturned on appeal, and perhaps only one charge has been validly pursued, the current one against Abd al-Hadi al-Iraq for killing civilians in a war zone, during a war.
Throughout, the US has denied the men the most basic protection of the US constitution and Anglo-American common law: the unfettered habeas corpus that would have resulted in the release of many of them years ago.
The prisoners' entitlement to full habeas and due process is still being contested by the government, in the Al-Hela case pending before an en banc DC Court of Appeals, a case destined for the supreme court.
Also pending is the Abu Zubaydah appeal for a civil subpoena, where the state secrets doctrine is being shamefully employed to protect CIA torturers whose identity is a matter of public record. More here.
Court observers Karen Greenberg and Linda Greenhouse comment on the current state of litigation.
The Biden administration is meanwhile resolving another Bush-Obama miscarriage of justice, that of Majid Khan, by cutting a deal that will avoid discussion, at his sentencing, of CIA torture.
Three other prisoners are to be released, including the oldest, Saifullah Paracha, another injustice righted. Still held are people like Mohammed Al-Qahtani: the Pentagon's own Convening Authority declined to refer him for trial, conceding he'd been tortured.
READ THE REST OF FITCH HERE.
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