Se Maomé não vai à Montanha (Ooops, desculpem a Heresia)

Desculpem, não era minha intenção insinuar que Maomé não consegue chegar à montanha e que, talvez, Cristo o fizesse com uma perna às costas e que até Buda, com a sua barriguinha, chegava lá e facturava (repararam na citação de Jorge Perestrelo? Cada um cita quem pode: uns citam filósofos outros relatores desportivos).

Passada a provocação politicamente incorrecta, passemos ao objecto do post: no momento em que até a CIA começava a ter receio de torturar prisioneiros (em virtude das tentativas de reposição da legalidade judicial) a solução encontrada para resolver o problema foi alterar a lei. Se não podemos violar a lei à vontade, então modemos a lei. Se Maomé não vai à montanha, a montanha vai a Maomé.

A este propósito vale a pena ler o que diz a Amnistia Internacional.

AI Index: AMR 51/154/2006 29 September 2006

UNITED STATES OF AMERICA
Military Commissions Act of 2006 – Turning bad policy into bad law

In recent days, human rights violations perpetrated by the USA throughout the "war on terror" have in effect been given the congressional stamp of approval. With the passing of the Military Commissions Act of 2006 by the US House of Representatives on 27 September and the Senate on 28 September, Congress has turned bad executive policy into bad law. This document looks back on the evolution of the executive’s "war on terror" detention policies, in order to illustrate the sort of violations in which Congress, through inaction and now legislation, has become complicit.[...]

The past five years have seen the USA engage in systematic violations of international law, with a distressing impact on thousands of detainees and their families. Human rights violations have included:

• Secret detention
  
• Enforced disappearance
  
• Torture and other cruel, inhuman or degrading treatment
  
• Outrages upon personal dignity, including humiliating treatment
  
• Denial and restriction of habeas corpus
  
• Indefinite detention without charge or trial
  
• Prolonged incommunicado detention
  
• Arbitrary detention
  
• Unfair trial procedures
  

Yet at the same time, US officials have continued to characterize the USA as a "nation of laws" and one that in the "war on terror" is committed to what it calls the "non-negotiable demands of human dignity", including the "rule of law".[...]

The US administration’s interpretation of the law has been driven by its policy choices rather than a credible postulation of its legal obligations. One core policy choice was to frame its response to the 11 September attacks in terms of a global "war" rather than as a criminal law enforcement effort. [...]

At a press conference in June 2004, with the administration seeking to quell the criticism of its policies following the Abu Ghraib torture revelations, then White House Counsel Alberto Gonzales recalled the administration’s post-9/11 discussions thus:
"[S]ome questions we faced were, for example: What is the legal status of individuals caught in this battle? How will they be treated? To what extent can those detained be questioned to attain information concerning possible future terrorist attacks? What are the rules? What will our policies be?...Just as military theorists thought about new strategies and tactics to fight terrorists, so, too, did lawyers in looking at how this war fits into the current legal landscape."

From these questions flowed a number of memorandums written in late 2001 and early 2002 by administration lawyers concocting legal positions on a variety of issues. These issues included the limits of the prohibition on torture or other ill-treatment, whether the choice of Guantánamo as a location for detentions would keep detainees out of the reach of the US courts, and the use of military commissions, to quote a November 2001 Justice Department memorandum, as "entirely creatures of the President’s authority as Commander-in-Chief". The White House Counsel himself drafted advice to the President suggesting that a benefit of not applying the Geneva Conventions to detainees picked up in the Afghanistan conflict would be that prosecutions of US personnel under the US War Crimes Act would become more difficult. [...]

The legal advice in these early administration memorandums thus seemed tailored to fit desired policy outcomes. Precedents that suited the policy were emphasised, laws that did not were ignored or downplayed. The indefinite detention regime in Guantánamo and the denial of habeas corpus was one result. A less than absolute ban on torture or other ill-treatment was another. Secret detention was a third. And unfair trial by military commissions still threatens to be a fourth. [...]

Access to the courts is seen as disruptive of military operations. In the version of the Military Commissions Act which President Bush sent to Congress on 6 September 2006, the administration argued that trials with lower standards of justice than apply in existing US courts were necessary because "the terrorists with whom the United States is engaged in armed conflict have demonstrated a commitment…to the abuse of American legal processes".[...]

The vast majority of those held by the USA in the "war on terror" are unlikely ever to face US judicial proceedings. As noted above, that is not why they are detained. Even the small number of detainees who have been charged have not come to trial. [...M]ore than two years after the Supreme Court ruled in Rasul v. Bush that the US courts had jurisdiction to consider habeas corpus appeals from the Guantánamo detainees, not a single one of them currently held there has had the lawfulness of his detention judicially reviewed.

The response of the US administration to the Hamdan v. Rumsfeld ruling has perhaps been even more shocking, although apparently not shocking enough to nudge Congress finally into calling the executive to account for "war on terror" abuses. Indeed, President Bush’s defence of the CIA’s program of secret detention and "alternative" interrogation techniques policy, which he said had been called into question by the Hamdan ruling and therefore needed congressional approval, showed an administration in assertively unapologetic mood. [...]

For until the Detainee Treatment Act was passed in December 2005 [...], Department of Justice lawyers took the position that because of the reservation attached to the USA’s ratification of the Convention against Torture in 1994, the USA had no treaty obligation on cruel, inhuman or degrading treatment with respect to foreign nationals held in US custody overseas. In addition, in August 2002, the Justice Department provided legal advice in a memorandum which only came to light in mid-2004 after the Abu Ghraib torture revelations. It was reportedly written in response to a CIA request for legal protections for its interrogators. The memorandum stated among other things that interrogators could cause a great deal of pain before crossing the threshold to torture, that there were a "significant range of acts" that might constitute cruel, inhuman or degrading treatment but would not rise to the level of torture and be prosecutable under the US torture statute, and that the President could override international or national prohibitions on torture. [...]

Sued in court, the CIA has so far been successful in its ploy of refusing to confirm or deny the existence of an alleged presidential directive and an alleged Justice Department memorandum authorizing and outlining the secret detention program and its interrogation methods. However, the methods are widely reported to have included techniques that would clearly violate international law. [...]

[T]he USA’s treaty reservations mean that the USA considers itself, including under the Detainee Treatment Act, bound by the prohibition on cruel, inhuman or degrading treatment or punishment only to the extent that it matches existing US law. Under US Supreme Court jurisprudence, conduct is banned that "shocks the conscience". Justice Department lawyers reportedly view this as allowing consideration of the context in which abuse of detainees occurs. Under such consideration, if a detainee is believed to have information considered by the government to be important to national security, the "shocks the conscience" test could be interpreted by the government as permitting conduct that would be otherwise be unlawful. As Chairman of the House Homeland Security Committee, Representative Peter King, said: "If we capture bin Laden tomorrow and we have to hold his head under water to find out when the next attack is going to happen, we ought to be able to do that". Or as Senator John Thune from South Dakota said in an earlier hearing of the Senate Armed Services Committee, "when you talk about humiliating or degrading or those types of terms and applying them to terrorists… I think that’s not something that people in my state would be real concerned [about]". [...]

Indeed it would appear that the President himself remains at square one, namely the position articulated in his 7 February 2002 memorandum on detention policy. This memorandum indicated that for some detainees at least, the administration viewed humane treatment as a policy choice rather than a legal obligation, and one that did not apply to the CIA. Four and a half years later, on 6 September 2006, President Bush justified the past use and continued existence of the secret CIA detention and interrogation program for use against certain "high-value" detainees on the grounds of necessity. He said that "it has been "necessary to move these individuals to an environment where they can be held secretly [and] questioned by experts" using unspecified "alternative" techniques to extract information from detainees allegedly resistant to interrogation. "Military necessity" has also been used to justify torture or ill-treatment at Guantánamo under at least one of two "special interrogation plans" authorized by Secretary of Defence Rumsfeld. [...]

President Bush [...] stated in his 6 September speech that as soon as Congress authorized military commissions acceptable to the administration, Abu Zubaydah and the 13 other men newly transferred to Guantánamo from years in secret CIA custody could "face justice", including the possibility of execution. It seems clear that the administration set out to use these high-profile detainees to apply pressure on legislators [...] to adopt legislation authorizing a revised version of the military commissions struck down by the Hamdan ruling, and to endorse other aspects of the administration’s detention policy. The resulting Military Commissions Act of 2006 is bad for the USA and bad for human rights.

The US system of government enshrines three separate branches of government – the executive, the legislature and the judiciary. In an opinion written eight decades ago, US Supreme Court Justice Louis Brandeis explained that: "The doctrine of the separation of powers was adopted by the convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy." [...]

[V]iewed from an international perspective, the executive, legislative and judicial branches of government all have roles to play in ensuring the USA’s adherence to its international legal obligations. The executive has singularly failed to meet its obligations in this regard. The judiciary, headed by the Supreme Court, has moved to rein in executive excess but as already noted, its rulings on the relatively narrow questions brought before it are vulnerable to narrow and self-serving interpretations by the executive.

Three days after the 11 September 2001 attacks, Congress had the opportunity to put down a marker against executive excess in the "war on terror". It failed to do so when it passed the broadly framed Authorization for the Use of Military Force (AUMF), which has since been used by the administration to justify violations of international law. Amnesty International believes that Congress should repeal or substantially amend the AUMF. Congress has failed to establish a commission of inquiry into the USA’s "war on terror" detention policies and practices, despite a compelling need for such an inquiry. In December 2005, Congress passed the Detainee Treatment Act, but included in it an impunity clause (§1004) and a severe curtailment of habeas corpus (§1005). [...]

Now Congress has passed the Military Commissions Act. [...] Among other things, the Military Commissions Act will:

• Strip the US courts of jurisdiction to hear or consider habeas corpus appeals challenging the lawfulness or conditions of detention of anyone held in US custody as an "enemy combatant". Judicial review of cases would be severely limited. The law would apply retroactively, and thus could result in more than 200 pending appeals filed on behalf of Guantánamo detainees being thrown out of court.
  
• Prohibit any person from invoking the Geneva Conventions or their protocols as a source of rights in any action in any US court.
  
• Permit the executive to convene military commissions to try "alien unlawful enemy combatants", as determined by the executive under a dangerously broad definition, in trials that would provide foreign nationals so labeled with a lower standard of justice than US citizens accused of the same crimes. This would violate the prohibition on the discriminatory application of fair trial rights.
  
• Permit civilians captured far from any battlefield to be tried by military commission rather than civilian courts, contradicting international standards and case law.
  
• Establish military commissions whose impartiality, independence and competence would be in doubt, due to the overarching role that the executive, primarily the Secretary of Defense, would play in their procedures and in the appointments of military judges and military officers to sit on the commissions.
  
• Permit, in violation of international law, the use of evidence extracted under cruel, inhuman or degrading treatment or punishment, or as a result of "outrages upon personal dignity, particularly humiliating or degrading treatment", as defined under international law.
  
• Permit the use of classified evidence against a defendant, without the defendant necessarily being able effectively to challenge the "sources, methods or activities" by which the government acquired the evidence. This is of particular concern in light of the high level of secrecy and resort to national security arguments employed by the administration in the "war on terror" [..] appear[ing] on occasion to have resorted to classification to prevent independent scrutiny of human rights violations.
  
• Give the military commissions the power to hand down death sentences, in contravention of international standards which only permit capital punishment after trials affording "all possible safeguards to ensure a fair trial". The clemency authority would be the President[, who] has overseen a system that has systematically denied the rights of detainees.
  
• Limit the right of charged detainees to be represented by counsel of their choosing.
  
• Fail to provide any guarantee that trials will be conducted within a reasonable time.
  
• Permit the executive to determine who is an "enemy combatant" under any "competent tribunal" established by the executive, and endorse the Combatant Status Review Tribunal (CSRT), the wholly inadequate administrative procedure that has been employed in Guantánamo to review individual detentions.
  
• Narrow the scope of the War Crimes Act by not expressly criminalizing acts that constitute "outrages upon personal dignity, particularly humiliating and degrading treatment" banned under Article 3 common to the four Geneva Conventions. [...]
  
• Prohibit the US courts from using "foreign or international law" to inform their decisions in relation to the War Crimes Act. The President has the authority to "interpret the meaning and application of the Geneva Conventions". [...]
  
• Endorse the administration’s "war paradigm" – under which the USA has selectively applied the laws of war and rejected international human rights law. The legislation would backdate the "war on terror" to before the 11 September 2001 in order to be able to try individuals in front of military commissions for "war crimes" committed before that date.
  

Meanwhile the human rights violations continue. The CIA’s secret detention and interrogation program retains the full support of President Bush. During the debates on the Military Commissions Act, members of Congress expressed their support for the program, despite the fact that it violates international law. Thousands of detainees remain in indefinite detention without charge or trial in US custody in Iraq, Afghanistan and Guantánamo. In passing the Military Commissions Act, Congress has failed these detainees and their families. [...]