Zadvydas v. Davis that the due process clause applies to all persons within the boundaries of the United States, including deportable aliens. The abuses described above cannot be explained away by the immigration status of the detainees; in its dragnet approach, and its disregard for the fundamentals of criminal procedure, the government has seriously infringed upon the guarantee of due process under the law. The Sixth Amendment The Sixth Amendment ensures the unbiased and timely completion of criminal proceedings, mandating among other things, a clear specification of the criminal charges being alleged, the opportunity to refute evidence, an expeditious trial, and legal representation for the defendant. Immigration proceedings do not offer the same guarantees: for example, an immigration detainee has the right to an attorney, but not to one appointed by the state. All of the individuals held on immigration charges were kept in custody until they had been cleared of any criminal suspicion, turning the presumption innocense until proven guilty on its head. Furthermore, the immigration detainees who attempted to seek legal assistance were thwarted in their efforts by excessive restrictions on prison telephone usage, and by the fact that the lists of legal services providers made available by the prisons was often hopelessly out of date. Meanwhile, attorneys seeking to work with detainees were routinely turned away. For many detainees, access to an attorney was hindered in these ways for weeks or even months. 23 Even more disturbing are reports that detainees have been actively prevented from obtaining legal assistance. According to a report released by Amnesty International, some detainees who requested an attorney were turned down by prison officials. In many cases, immigration detainees were interrogated by the FBI, triggering their Sixth Amendment rights to courtappointed counsel. These detainees were not informed of their rights in this respect, and representation was not provided. 24 The most serious and well-known threat to Sixth Amendment rights arise from the interim regulation issued by the Attorney General on October 31, 2001 discussed above. The regulation allows agents to monitor conversations between attorneys and prisoners, contravening the venerable principle of attorney-client privilege, wherever "reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism." Both attorney and client must be notified unless a court order has been obtained. The regulation stipulates that privileged discussions will not be disclosed. This regulation is troubling in several respects. First, although such surveillance has been allowed in the past under limited circumstances, the approval of a judge has always been required. Under the new rule, the Attorney General has the power to approve such requests, even though the office of the Attorney General also oversees the criminal investigations that presumably would not have access to the information collected. Likewise, though it is not specified, it is likely that the "privilege team" responsible for determining what communications are protected will also be Justice Department employees, creating the possibility of collusion between those investigating the case for criminal purposes and those monitoring to guard against future terrorist acts. These aspects of the rule invite abuse. Even if the potential for abuse is not exploited, the rule will likely have a chilling effect on attorney-client communications. Because a court order would allow agents to monitor conversations without the knowledge of either party, neither attorney nor client can ever be sure that their conversations are not being heard. Loose definitions in the text of the regulation heighten such concerns - it is up to agents' supervisors to determine, e.g., what counts as an "imminent act of violence," or what communications "are not related to the seeking or providing of legal advice" and hence may be disclosed to other parties. Under these provisions, a broad category of suspects may have legitimate cause to worry that their conversations will be monitored, even though no substantive connection exists between their cases and any terrorist plot 25 With no way to determine for sure whether they are under surveillance or not, even innocent clients in detention may be afraid to disclose facts of their case to their attorney. The interim rule is likely to inhibit detainees from talking freely with their attorneys, and recent events in conjunction with the rule have given attorneys pause before representing such clients at all. On April 9, 2002, Attorney General John Ashcroft announced the indictment of criminal defense attorney Lynne Stewart on charges that she provided material support to a foreign terrorist organization. The accusation - which Stewart unequivocally denies - was based on information gleaned by listening into conversations between the attorney and her client, Sheikh Omar Abel Rahman, a jailed Muslim cleric with ties to Egyptian terrorists. The surveillance was authorized under the Foreign Intelligence Surveillance Act discussed above; future monitoring in her case, however, will be done pursuant to the interim rule. Without a meaningful guarantee of appropriate attorney-client privilege, the Sixth Amendment right to assistance of counsel is rendered meaningless. By implementing vague guidelines protecting privileged information from disclosure to criminal investigators, and by failing to include any provision for independent oversight, the interim rule raises the possibility that discussions between the client and his attorney may end up in the hands of prosecutors. Because no detainee can be sure that agents are not monitoring their conversations, it is likely that many will shy away from full and honest discussions with their attorneys. In this way, the rule undermines the right to a fair trial and a vigorous defense. N. Governing In A Vacuum Although the United States has an obligation and right to arrest and try the perpetrators of the horrendous crimes of September 11, it must do so in compliance with fundamental principles of national, human rights and humanitarian law. It has not done so. The United States' failure to abide by these fundamental principles sets a precedent for the actions of other states, states that will see U.S. actions as supporting their own violations of international law and human dignity. Thousands of prisoners were captured by US and Northern Alliance forces in Afghanistan last Fall. On January 11, 2002, the United States military began transporting these prisoners to Camp X-Ray at the U.S. Naval Station in Guantanamo Bay, Cuba. It was reported that the transferred prisoners could face trials by military commission under the Military Order and possibly the death penalty. Since that time, there have been allegations of ill-treatment of the prisoners in transit and at Guantanamo, including reports that they were shackled, hooded and sedated during the 25-hour flight from Afghanistan, that their beards and heads were forcibly shaved, and that upon arrival at Guantanamo they were housed in small cells that fail to protect against the elements.27 A number of international bodies including the European Union, the International Committee of the Red Cross ("ICRC") and a number of foreign governments have expressed grave concerns over the treatment of the detainees, their confinement conditions and the refusal of the United States to afford them status under the Geneva Conventions.28 26 On January 16, 2002, the United Nations High Commissioner for Human Rights issued a statement regarding the Guantanamo detentions, noting that: "All persons detained in this context are entitled to the protection of international The legal status of the detainees, and their entitlement to prisoner-of-war (POW) arog te (AC Brew Bonowiesçes public oferences with goverments, I did so with anche red brates refusal o rear te Taicar and a Quda teainees as PCVs. On Fanart the say are announcement & te rited States csitor Car Chrsten, a Toesem os te CRC ad te teraness Tex mera sactured in combat and we seode what acclies to one censor and what acces c anciter. This ras to go to a court because rise a eça decision not a political ints Press Release of February & the CRC agar stated that sactured "members of armed forces and militias associated to them are protected by Geneva l'ard ta tere are divergent news between the United Shares and the CRC" as to the procedures for how to determine that Te sensors detained are not entitled to onscrer of war status** interrogator of the Guantanamo or scrent segar or January 23 2002 No detainees were allowed to have awyer present surng questioning by officers from several United States civilian and militari agencies. * The Tulitary has recortedly built several windowless civwood structures on the outskins of the detention center for the purpose of obtaining information from the detaireeg heir tere There are presenty 598 onsorens held rcommunicado at Guantanamo and the govemment has said that it will build facilities for folding to to 2000 persons. There are no indications that the detainees have been formed of ter nghts under the Geneva Conventions. the COPR the American Declaration on the Rights and Outes of Mar: "ADROM the Vienna Convention on Consular Relations or any other memanonal instrument which safeguards the fundamental human rights of detainees As a result prisoners at Camp X-Ray are completely unable either to protect or to vindicate violations of their fundamental rghts under domestic and international in published statements both the Secretary of Defense and other offic als recently indicated the United States may hold the detainees under these conditions indefinitely The United States has repeatedly refused the entreates of the international community to treat the detairees under the procedures established under the Geneva Conventions The Third Geneva Convertion apples to the treatment and legal status of POWs. The convention requires that persons captured during ar intemational armed conflict are presumed to be POWs until a competent tribunal determines otherwise. Instead of following these procedures which require ndividual ceterminations as to whether or not a combatant is a PCW. the United States has simply decided en masse that none of the Taliban or Al Qaeda detainees is a POW. This nonndividua zed determination made by United States' officials is contrary to the procedures established by the clear commands of the Third Geneva Convertor. As a result, none of the detainees are receiving the protections afforded POWS - protections to which they are entitled-- until the United States convenes a competent tribunal to determine their status. These include a prisoner's right under Articles 70 and 71 of the Third Geneva Convention to write directly to his family "informing his relatives of his capture, address and state of heath and to send and receive correspondence POWs are also entitled to treatment and housing similar to that of U.S. soldiers issuance of identity cards, protection from interrogation camps (which is what Guantanamo appears to be) and the use of coercion during interrogation. A POW also has the right to engage in hostilities without criminal penalty and valuable procedural protections in any prosecution for war crimes-- protections equivalent to those given to a US soldier during a court-martial. As military commissions cannot try US soldiers, ne ther can they ty the detainees at Guantanamo Human Rights Violations Relating To the Arbitrary, Incommunicado, and Prolonged The United States' treatment of the Guantanamo detainees violates norms of international humanitarian law relating to the treatment of individuals detained during times of international armed conflict. United States' actions violate international human rights norms as well. It is a widely accepted principle of international law that the application of international humanitarian law does not "exclude or displace" the application of international human rights law since both share a "common nucleus of non-derogable rights and a common purpose of protecting human life and dignity 141 The United States' treatment of the Guantanamo detainees violates virtually every human rights norm relating to preventive detention. The United States has denied the detainees access to counsel, consular representatives, and family members, has failed to notify them of the charges they are facing, has refused to allow for judicial review of the detentions, and has expressed its intent to hold the detainees indefinitely. Meanwhile, the United States has continued to interrogate the prisoners. Violations Relating to Trial Before Military Commissions Through the establishment of the Military Tribunal system by Executive Order, the United States has indicated its intention to subject certain detainees to trial before military commissions, in which they could face the death penalty. These tribunals or commissions could begin processing cases at any time. Meanwhile, the detainees have been given no facilities to begin preparing their defense, and no court has reviewed the validity of their prolonged detention The military commissions established by the Order fail to provide minimal guarantees of due process. Instead, the commissions are designed to ensure swift convictions and possible death sentences based on secret evidence. Only the executive branch of the United States' government would review the convictions and death sentences, with no right to judicial review, and no right to appeal. In short, trials before military commissions would be skewed in favor of the government, would fail to provide adequate due process protections. On February 25, 2002, the Center filed a petition with the Inter-American Commission for Human Rights seeking the Commission's intervention and requesting the issuance of Precautionary Measures to protect the rights of persons detained at Guantanamo, including their right to an independent determination as to their legal status and their right to be free from trial before commissions that fail to afford defendants fundamental due process rights. On March 13, 2002, the Inter-American Commission on Human Rights granted the Center's request in part and requested that the US. Government convene competent tribunals to determine the detainees' legal status. The Commission found that as matters stood, those persons detained were held at the "wholly unfettered discretion of the US government " To date the government has failed to comply with the Commission's request, claiming the Commission neither had jurisdiction over the situation nor the authority to act as it did 5. Conclusion The Bush Administration's war against terrorism, without boundary or clear end-point, has led to serious abrogation of the rights of the people and the obligations of the federal government disturbing is the attempt to codify into law practices that erode privacy, free speech, and the separation of powers that is the hallmark of our democracy. Particularly dismaying are two trends on display in government actions. In its conduct of the terrorism investigation, the government has disregarded its responsibility to maintaining a democratic society. Encroachments on the separation of powers threaten the return of authoritarian rule, inasmuch as that division of authority was set to make sure that no one in government holds a disproportionate amount of power. Short of this, they undermine the oversight provided by the legislative and judicial branches over executive authority, and invite abuses by an unchecked government. Further, by seeking to hide its actions under the mantle of national security, the Administration weakens the accountability of government to the people, inasmuch as an informed public is essential to an effective democratic system. Finally, it is abridgment of First Amendment rights, the government - Congress as well as the President threatens to choke off legitimate expressions of dissenting political viewpoints, undermining the free flow of ideas that is the hallmark of thriving democratic debate. At the same time, government actions also undercut its obligations to maintain the rights that make our society free. New legislation, hard-line regulations in the Justice Department, and the impunity with which the Administration has abused the rights of detainees all pose a threat. The free speech and assembly rights as well as the freedom of the press guaranteed by the First Amendment have variously been compromised by government actions, hampering the flow of ideas, and creating possible penalties for their expression. The rights conferred by the Fourth, Fifth and Sixth Amendments guarantee against arbitrary and malicious persecution of individuals by the state; by weakening those protections, the government has opened the doors to new encroachments on the liberties that all residents of the United States rightfully enjoy. Endnotes 1. While many of the detainees have been Muslim, it should be noted, some were not, so 2. See, e.g., United States v. United States District Court, a Supreme Court ruling rejecting an argument by the Nixon Administration to the effect that the President has the inherent authority to suspend articles of the Constitution in times of emergency. 3. See www.whitehouse.gov/news/orders. 4. Cf. "Executive Branch Actions," A White Paper by the American Immigration Lawyers Association, 8/15/02. 5. Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001). 6. See discussion of the "Creppy Memo," below. 7. See "ACLU Decries Ashcroft Scheme to Gut Immigration Courts," press release, American Civil Liberties Union, (March 20, 2002). 8. "Immigration Judges seek independence from Justice Department," Los Angeles Times, 1/31/02 1 |