Wednesday, September 15, 2021

From Roger Fitch and his friends down under at Justinian...

 Historians will rightly blame George Bush for many domestic effects that remained, e.g, an armaments industry in overdrive and a security state. 

Above all, there is a re-jigged justice system that has sanctioned the prosecution of combatants and militarised civilian crimes, epitomised by the extrajudicial detention at Guantánamo and "trials" in its kangaroo courts

Astonishingly, liberal democracies like Australia and Canada (and briefly, Britain and Germany) allowed their citizens to be caught up in proceedings that violated their own laws as well as American and international law. 

Zbigniew Brzezinski: father of the Afghan folly

Opportunistic, malleable, incompetent or merely dishonest, bad lawyers were at the heart of the Bush Administration's derailment of law. John Yoo, Jay Bybee, Patrick Philbin, Robert Delahunty, Timothy Flanigan, Daniel Levin, Steven Bradbury, Jim Haynes and Alberto Gonzales joined in memos that ignored the Torture and Geneva Conventions, "authorising" practices that first-year law students would recognise as illegal. 

"National Security" brought such things before. Although it's disputed, the law professor Scott Horton believes Bush's lawyers were as culpable as Hitler's Night and Fog lawyers, tried at Nuremberg in the Altstoetter case:

"Justice Department lawyers were ... charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht-und-Nebel [decree]. The United States charged that as lawyers ... they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were 'recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war' ... the two principal Justice Department lawyers ... were convicted and sentenced to ten years' imprisonment ...This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom."  

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While Karen Greenberg has lamented the overall damage to America's rule of law caused by the 20-year "War on Terror", others are turning their attention to righting particular terror-war wrongs, e.g, Guantánamo, its inmates and former inhabitants, and the treatment of Detainee 001, John Walker Lindt.  

Among those speaking out have been human rights lawyers, prisoner advocates and members of the Guantanamo Bar. They point out that, following the end of hostilities in Afghanistan, there's little legal basis for military detention of "law of war" prisoners, not charged with war crimes. 

Many were non-combatants, seized outside Afghanistan, and only five percent were captured by US soldiers on the battlefield. All were presumed by George Bush to be unlawful fighters, fictional "enemy combatants".

Those who were in fact belligerents were often lawful ones, e.g, the five Taliban (see below) freed by Obama in a prisoner swap in 2014. 

They were fully entitled to the protections of the Geneva Conventions that the Pentagon had scrupulously provided in previous wars, e.g, PoW status hearings required under the Geneva Conventions and the US Code of Military Justice. The Vietcong received these, why not the Taliban? 

Instead, officials trying to follow the law were bullied, sacked or re-assigned (see Fitch here). 

Al Jazeera and the Times have more on the sordid history and present state of the Guantánamo project.