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RADIO NATIONAL BREAKFAST

Friday, 30 June 2006

FRAN KELLY: As we have heard this morning, the US Supreme Court has delivered a stunning blow to the Bush administration’s plans to try Guantanamo Bay detainees before military commissions. In a five-three ruling the country’s highest court declared the military commissions illegal under US and international law. But the ruling doesn’t order the closure of Guantanamo Bay detention centre and it could leave the detainees, including David Hicks, in limbo.

Michael Ratner is an international human rights lawyer who runs the Center for Constitutional Rights. It represents 200 of the 460 Guantanamo Bay detainees. Until recently it also represented David Hicks.

Michael joins us now from New York. Michael, good morning.

MICHAEL RATNER:  Good morning.

FRAN KELLY: Michael, what’s the core of the Supreme Court’s ruling here? The US government doesn’t have the legal authority to run its military commissions at Guantanamo Bay—what’s it based that on?

MICHAEL RATNER: Well, that’s the core in a way but the deeper core is that the President can’t simply do whatever he wants in the so-called war on terror, that he is bound by both Congress—the Congressional Act—as well as by international law and, in particular, the Geneva conventions, and that’s what’s crucial here.

The President really, beginning in 2002 when they picked up David Hicks, said, ‘I don’t have to listen to the Geneva conventions, we don’t have to obey them, we can take people to Guantanamo, treat them inhumanely and try them before military commissions.’ And what the court said, ‘Absolutely not’. Common article three, which is the critical article, it guarantees certain kinds of trials and the humane treatment applies to people, whether they are alleged members of al-Qaeda or anybody else, picked up in the so-called war on terror.

The heart of this opinion is that Geneva conventions apply. That means you cannot try people by military commissions. The Geneva conventions do not authorise military commissions and that means David Hicks, for example, cannot be tried by a commission. He has to be tried, if at all, by a court martial or by civilian courts.

FRAN KELLY: Is that clear, though, because the ruling from the Supreme Court does seem to give the Bush administration an opportunity to come up with another way of trying these people. One of the judges said, ‘nothing prevents the President from returning to Congress to seek the authority he believes necessary’ and the President seems to have interpreted that as through Congress can somehow make a law that will make these military commissions legal.

MICHAEL RATNER: Of course, that same judge … it’s of course going back to Congress and will be going back to them a second time to try and overturn the Supreme Court decision, so I am hopeful that that will not happen. But even if it did, the Congress would have to set up a commission that actually complied with what we call due process or fundamental rights guarantee. That would look very different than a military commission today. You would have not only the right to an attorney, you would have the right to suppress evidence that was a result of coercion or torture, you’d have a right to full cross-examination of the witnesses against you. The trial couldn’t be closed for all kinds discretionary reasons. It would resemble a lot a court martial. So even that trial would make it very difficult for this administration. Here we are, look, it’s five years later, the evidence against a number of these people has gotten through coercion. They probably can’t use that evidence in any trial that resembles a legitimate trial. So my view is that it is going to be unlikely that Congress allows a military commission to go forward after this opinion. And you’d never know with the Republican Congress but I think it is unlikely.

FRAN KELLY: So it’s mostly likely, in your view, that even though the Bush administration is talking about getting clearance for some kind of military commission, really it will be a court martial and that’s an improvement from your point of view.

MICHAEL RATNER: That’s true. But even if they got a commission it would have so many due process guarantees that it would cause me less problems than the current one although I would still prefer that you go by an established system that is in affect at the time an alleged crime is committed, which is a court martial or civilian trials.

FRAN KELLY: So, Michael, what does this in effect then mean for detainees like David Hicks? He was scheduled for a military commission. He’s been waiting for months and months on that. He’s now been locked up for four years. It doesn’t sound like any decisive action will be happening any time soon.

MICHAEL RATNER: Well, you know, we are doing our best as we can in the courts. This is the second decision we’ve won in the Supreme Court but it’s really going to take pressure on the US government to continue pressure from countries where detainees are from—from Australia to other countries where detainees are from—as well as just the continued statements by people, from UN bodies and others, that it is time to close Guantanamo and either try people or release them. This has been five years in a legal limbo. This administration, knowing the way it goes, can probably try and continue this for another five years and I could be talking to you in two more years when another Supreme Court decision….

FRAN KELLY: Do you think, though, that the President might welcome this in a sense as a cover to start moves towards closing Guantanamo Bay because he has been making comments recently like he’d like to close it down?

MICHAEL RATNER: No, that’s actually my hope because he did say a couple of days ago that he was awaiting this decision, that he couldn’t do it before this decision, which of course was not really true. But this decision really is sending a clear message to the President: get back on the page of law, get back into fundamental life and really it is saying there’s no place in the world for Guantanamo or a place that’s outside the Geneva conventions. So I am hopeful he listens to it this time like the administration did not do in the last case.

FRAN KELLY: Is there a case now or do you think there is pressure on countries for the detainees to be tried in their country of origin?

MICHAEL RATNER: I think that pressure has increased substantially by this opinion. Clearly try these people legitimately … and how is the United States going to do that? And they just have a big problem on their hands now. It’s a hole they’ve dug for themselves. And I think the best bet is to send people back to their countries and if there is a basis for charging them they can be charged, if there is no basis then they have to be released.

FRAN KELLY: Michael, what do you think this does to the moral pressure on the Bush administration because presumably this decision hasn’t come as a real surprise to the administration and George W. Bush has been criticised in the media there in the US particularly for overstepping his constitutional rights in his war on terror? Does this feed into that?

MICHAEL RATNER: It’s certainly a major legal blow to the administration—that’s obvious, and I think it’s also a moral and political blow. It’s a moral blow because it’s really saying, ‘President, you like the other leader or any other authority, is bound by law, bound by the laws made by Congress and bound by international laws, the Geneva conventions, which you’ve adhered to, this country’s adhered to, for a hundred years and now all of a sudden you’ve gone off the page.’ So in that sense it’s saying clearly to the President, ‘You’re not acting, not just illegally, but you’re not acting really within the context of what [inaudible]’

FRAN KELLY: Michael, can I just ask you, finally. The news today is that one of our government ministers has negotiated a prisoner transfer deal with the US for David Hicks …

Oh, we’ve lost Michael. He was in heavy traffic in New York. So there you go, the Bell Company or whatever has failed us.

That’s Michael Ratner, the Director of the Center for Constitutional Rights which represents the bulk of the Guantanamo Bay detainees. He was joining us there, as I said, from a traffic jam in New York.