'‘Having considered the matter, the government adheres to its previously articulated position.” With these words, Acting Assistant Attorney General Michael Hertz ended a dream. The dream that Barack Obama’s presidency would inaugurate a transcendent world order on a new moral plane.
The Independent Leading Article
February 23, 2009 "The Independent" -
Late on Friday Mr Hertz told the Washington district court that the Obama administration maintained President Bush’s view that prisoners held at Bagram air base in Afghanistan could not challenge their detention in US courts. For the cynics, this is “a previously articulated position you can believe in”.This newspaper was not so naive as to imagine that President Obama would immediately conform to the most scrupulous interpretation of US and international law. We are pleased that he has ordered the closure within a year of Guantanamo Bay, halted military trials and restricted CIA interrogators to Army Field Manual techniques. But the refusal to grant legal rights to detainees at Bagram is disappointing.The US Supreme Court ruling in 2004 that prisoners in Guantanamo had the right to take their cases to US courts ended the anomalous status of the prison camp in Cuba. President Bush’s attempt to create a legal limbo outside the American and international legal systems had failed. But he continued to try to deny legal rights to prisoners not just in Guantanamo but in Iraq and Bagram, too.Mr Obama’s closure of Guantanamo therefore smacks more of fulfilling a symbolic pledge than following it through. The Bush administration’s legal case was transparently unconvincing. It argued that detainees were “enemy combatants” being held until hostilities ceased. If so, they should have been entitled to the protections of the Geneva Conventions on the rights of prisoners of war. Yet President Bush resisted even that, and now President Obama represents continuity with that policy.Indeed, Elena Kagan, Mr Obama’s nominee for Solicitor General, said during her confirmation hearing that someone suspected of helping to finance al-Qa’ida should be subject to battlefield law – indefinite detention without trial – even if captured in the Philippines, say, rather than a battle zone.Nor is this the first disappointment of Obama’s presidency. Earlier this month, a government lawyer stuck to the Bush line in a case brought by Binyam Mohamed, the British resident expected home from Guantanamo tomorrow – about whom Clive Stafford Smith writes today. Mohamed and others are suing a subsidiary of Boeing for arranging “extraordinary rendition” flights, by which they were taken secretly to other countries where they say they were tortured.The Bush administration had argued that the case should be dismissed because discussing it in court could threaten national security and relations with other nations. When the case resumed after President Obama’s inauguration, the judge asked the Justice Department’s lawyer if “anything material” had happened to change that view. “No, your Honour,” came the reply. The position he continued to take, he said, had been “thoroughly vetted with the appropriate officials within the new administration”.'