War on Terror – An Internal Front

The overarching intent of the New Paradigm, which was put in place after the attacks of September 11th, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their existing standards of evidence and emphasis on protecting defendants’ rights, were deemed too cumbersome. Instead, the President authorized a system of detention and interrogation that operated outside the international standards for the treatment of prisoners of war established by the 1949 Geneva Conventions. Terror suspects would be tried in a system of military commissions, in Guantanamo Bay, Cuba, devised by the executive branch. (Jane Mayer, The New Yorker, July 3, 2006)

An aftermath of 9/11 was the expression of deep grief on the loss of American lives in the mainland. There was urgent feeling for the need to punish the perpetrators with the speed and intensity that the tragic incidents called for, and declaration of war on an enemy which did not have a country and individual identity. The Congress readily authorized the president to take whatever measures he deemed necessary for fighting terrorism including waging war against the countries that harbored the terrorists. Invasions of Afghanistan and Iraq were undertaken promptly and in quick succession. So far so good. But what to do with the terrorists who were arrested during the execution of these wars? Were they to be treated like the prisoners of war under the Geneva Conventions or were they to be dealt with differently? The administration believed the terrorists were not the prisoners of war who deserved the Geneva conventions – they were to be dealt with by the military commissions set up specifically for this purpose only, and without any court martial. It was argued that the terrorists did not deserve any legal trial according to the normal practice. It didn’t matter if the prisoners included suspects who were not guilty of any wrongdoing. The outlines of these policies were drawn up in the office of Vice President Dick Cheney, aided by the lawyers particularly David S. Addington, now Cheney’s Chief of Staff and his longtime legal adviser.

Ever since this policy was put into practice, there had been simmering criticism which was largely ignored by the Pentagon and the White House. Salim Ahmed Hamadan, ex-driver of Osama bin Laden and now held in custody at Guantanamo, whose case was in the Supreme Court, brought the questionable situation to a head. The Supreme Court “struck down the military commissions President Bush established to try suspected members of al-Qaeda, emphatically rejecting a signature Bush anti-terrorism measure and the broad assertion of executive power upon which the president had based it,” (High Court Rejects Detainee Tribunals, washingtonpost.com, June 30, 2006). The ruling was handed down by a vote of 5 to 3.

The ruling however does not restrict the president “to keep the terrorist suspects at Guantanamo Bay or elsewhere, a point Bush emphasized in his reaction,” (washingtonpost.com, June 30, 2006). The president said, “The American people need to know that this ruling, as I understand it, won’t cause killers to be put on the street.” It won’t but at the same time it calls for the detainees to be tried or set free. While they are held in custody, they should be treated according to the provisions of the Geneva conventions.

Many see court’s ruling having far-reaching consequences beyond the detainees’ right for fair trial. According to washingtonpost.com, “Legal analysts said that the court’s opinion could lead to a challenge to the National Security Agency’s domestic surveillance program, because wiretapping is already covered by a federal statute, the Foreign Intelligence Surveillance Act, just as military commissions were, in the court’s view, covered by the UCMJ (Uniform Code of Military Justice).” Thus the court’s ruling has much wider consequences for the powers that the president had assumed under the pretext that the Congress had given him the authority to do what is needed to prosecute the war against terror.

The court’s ruling has created two groups in President Bush’s administration. One of them “headed by the national security adviser Stephen Headley and Secretary of State Condoleeza Rice, want to use the decision as the basis for a wide-ranging ‘fix’ that would accept a role for Congress and the courts on detainee issues. That would, at a minimum, require Congress to authorize military commissions under new rules that provide greater protections for the accused…Bur hard-liners (the second group) – led by Addington, now Vice President Cheney’s chief of staff – are fiercely resisting. They, along with some congressional Republicans, want to nullify the court ruling by rewriting portions of the Uniform Code of Military Justice and granting the president the powers the court rejected,” (Newsweek, July 17, 2006). The internal front of the war on terror is thus a struggle for the acquisition of powers for the president which the constitution denies him.

This also spilled over into the arena of freedom of the press; whether the press has the right to reveal government policies and actions which the administration works hard to keep secret from the public. The latest is the publication of “secret international banking surveillance program” by The New York Times on June 26, 2006. Two other newspapers (Los Angeles Times and Wall Street Journal) also carried this story but the administration’s wrath was directed mainly at the Times.

President Bush lashed at the Times and other papers which had published the expose’, in “a White House appearance with supporters of troops in Iraq” and said, “What we did was fully authorized under the law … And the disclosure of this program is disgraceful. We’re at war with a bunch of people who want to hurt the United States of America, and for people to leak that program, and for a newspaper to publish it, does great harm to the United States,” (Surveillance Disclosure Denounced, washingtonpost.com, June 27, 2006). The washingtonpost.com article went on to assert, “Critics said Bush was trying to divert attention from his own actions. Bush, Cheney and other Republicans have adopted a shoot the messenger strategy by attacking the newspaper that revealed the existence of the secret bank surveillance program rather than answering the disturbing questions that these reports raise.”

The internal front is the battle for the rule of the law in the country.