Nov. 10, 2006 – As the removal of the Pentagonâ€™s top official fuels speculation about a new course in Iraq, human-rights groups are feeling out how a churning of military leadership could impact the fate of detainees in US custody â€“ as well as the future of war-crimes and human-rights cases facing the administration.
- Critics Consider Interrogation 'Reform' a Step Backward (Oct 3, 2006)
To organizations advocating for detainees swept up in the so-called "war on terror," Defense Secretary Donald Rumsfeldâ€™s decision to step down signals discontent with the administrationâ€™s policies and posture on the Iraq War. But rights groups are cautious about the impact the changes may have on human-rights issues tied to US military operations.
Wells Dixon, an attorney with the advocacy group Center for Constitutional Rights (CCR), said the removal of Rumsfeld is a clear measure of public frustration, but not necessarily a turning point.
The move "reflects a shift away from the policy of the Bush administration," he said, "which has been to conduct the so-called â€˜war on terrorâ€™ as it sees fit, without consultation among the other branches of government."
However, Dixon was circumspect on the potential for a change of course under Rumsfeldâ€™s slated replacement, former CIA Director Robert Gates. "Weâ€™re not holding our breath," he said.
Hina Shamsi, senior counsel with Human Rights First, said that after half a decade of what critics view as blatant unilateralism, "the question is going to be whether the new secretary of defense will openly and publicly state that the [abusive] policies and practices that occurred with Secretary Rumsfeldâ€™s authorization and on his watchâ€¦ are going to be absolutely disallowed."
To activists, the removal of Rumsfeld is a clear measure of public frustration, but not necessarily a turning point.
As the head of the Pentagon and a cabinet-level official, the secretary of defense plays a key role in shaping detainee treatment policies. Gates, who headed the CIA under President George H.W. Bush, is currently part of the Iraq Study Group, a congressionally commissioned panel reviewing Iraq policy.
Gates was a controversial figure in the late 1980s and early â€˜90s due to his suspected involvement in the Iran-Contra scandal. Gates admitted under oath that he had been aware of the affair, in which the Reagan administration covertly circumvented Congress and US laws to fund an insurgency against the democratically elected government of Nicaragua.
Rumfeldâ€™s resignation comes just weeks after Congress cemented a set of controversial counterterrorism policies in the Military Commissions Act of 2006. Human-rights groups and some lawmakers have blasted provisions aimed at stripping the rights of detainees. The legislation essentially legalized the military commissions created by the administration to try prisoners deemed "unlawful enemy combatants."
The Act also barred detainees anywhere in the world from invoking the constitutional right to challenge the legality of their imprisonment â€“ known as habeas corpus.
The Military Commissions Act was in part designed to thwart the very changes that activists are hoping for in the wake of Rumsfeldâ€™s departure
Jennifer Daskal, US advocacy director with Human Rights Watch, told The NewStandard that the Military Commissions Act was in part designed to thwart the very changes that activists are hoping for in the wake of Rumsfeldâ€™s departure. Congress passed the bill, she said, "to protect the administration from a change in Congress that might disagree with his attempt to expand presidential authority."
Dixon of CCR said that regardless of who presides over the Actâ€™s implementation, the courts will eventually determine the scope of the law â€“ a process now starting in two pending cases before the federal Court of Appeals in Washington, DC. CCR, which represents hundreds of GuantÃ¡namo detainees, is leading the litigation.
In a brief filed last week on behalf of detainees, CCR argued that under the Constitution, the purported ban on habeas rights would be legal only in extreme cases of invasion or rebellion, and that continuation of current detention policies would violate both domestic and international law. CCR attorneys also argued that the review boards established by the White House, known as Combatant Status Review Tribunals, offer no meaningful oversight and therefore could not substitute for court purview.
While the Military Commissions Actâ€™s "court-stripping" provisions were decried by rights groups, the legislation only provides meager protections against abusive interrogation techniques. Advocates for detainees say enforcement of those protections hinges on congressional oversight, and there is a chance that scrutiny of the White House will tighten in the wake of the midterm elections.
The Pentagon, meanwhile, has not indicated whether Rumsfeldâ€™s replacement will affect its policies. In an interview with TNS, Lt. Commander Chito Peppler, Defense Department spokesperson, would not speculate on whether interrogation or detention policies would change following the resignation. But he said the Pentagon "has issued revised policies" in the past based on consultations with Congress and other officials, and may continue to do so while moving to implement the tribunal process.
Daskal said that although a complete repeal of the law is unlikely under the new Congress, lawmakers might now have "a chance to revisit some of the most egregious provisions in that act." In previous Senate negotiations over the bill, she noted, an amendment to strike the habeas suspension lost 51-48.
Whether or not recent developments in Washington directly affect detainees languishing indefinitely in US custody, their advocates continue to campaign for accountability among top military and intelligence officials.
CCR announced Wednesday that it will seek to charge Rumsfeld with war crimes in an international legal arena. The group said it is working with international human-rights groups to file a complaint against Rumsfeld that invokes Germany's universal jurisdiction law.
In 2004, CCR and the Berlin-based Republican Attorneys' Association filed a similar suit in the German court system, charging Rumsfeld and other administration officials with the abuse of Iraqi prisoners at the Abu Ghraib prison. After generating tension between the German and US governments, the high-profile case was dismissed by Germanyâ€™s federal prosecutor in 2005.
Some provisions of the Military Commissions Act help shield officials from prosecution for violations of detainee-treatment standards. But Dixon said that as a legal defense, those clauses are limited and might not stand up in US courts, and would in any case not apply under international jurisdiction.
"Secretary Rumsfeld's resignation doesn't get him off the hook for violations of US and international law by any stretch of the imagination," he said.