Almost across the board, liberal commentators greeted news of the recent Supreme Court ruling on military tribunals at Guantanamo, Hamdan v. Rumsfeld, with euphoria. Omnesha Roychoudhuri wrote on AlterNet that the “Supreme Court ruling on Guantanamo detainees marks what may well be the beginning of the end to an unchecked executive power.” A litany of additional progressive lawyers and activists wholeheartedly agreed. These assessments were echoed generally in bourgeois press outlets like the New York Times and National Public Radio.
But nothing could be further from the truth. No prisoners will be released. U.S. torture will not cease. In point of fact,
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Liberals and radicals misinterpreted the Hamdan ruling because they willfully ignore or don’t understand the role of the Supreme Court as part of the overall capitalist state apparatus. The bourgeois media assessments of the ruling stemmed from something entirely different. As a propaganda arm for the capitalists, the bourgeois press didn’t misinterpret the ruling at all. They know that, in effect, the ruling means little. But they raced to highlight the cosmetic changes mandated by the court in order to deflect growing public outrage at the U.S. torture camp at Guantanamo.
As an institution, the Supreme Court was founded and shaped to serve as the main arbiter for protecting capitalist interests. It is not separate and somehow positioned above the president and executive branch; it is the executive’s necessary partner in the same repressive system. Its character didn’t change suddenly with the Hamdan ruling.
What did the court leave out?
In Hamdan v. Rumsfeld, the Supreme Court deliberately confined itself to an extremely narrow legal matter: does the executive branch possess the right to convene military tribunals for its Guantanamo prisoners. What it failed to address is even more important: the legal status of the base itself and the establishment of a prison camp there, the legal status of the prisoners as “enemy combatants,” the legality of so-called “black sites,” and the ongoing practice of extraordinary rendition.
Torture also will continue despite the U.S. Defense Department announcement that certain provisions of the Geneva Convention will now apply to the treatment of Guantanamo detainees. Steven Bradbury, acting assistant attorney general in the Justice Department’s Office of Legal Counsel, made this point clear while testifying before Congress this week. He told a Senate panel that Article 3 of the Geneva Conventions was “inherently vague” and could be interpreted to sanction current U.S. government practices.
Moreover, the Bush administration has a range of possible responses to the extremely narrow limitations placed upon its power by the Supreme Court. It can do the following:
1) Abrogate the Geneva Conventions altogether. The United States has abrogated important international treaties before, such as the Anti-Ballistic Missile Treaty in 2001, and faced no consequences. This is unlikely but not impossible.
2) The president can opt to try prisoners in standard courts-martial. These courts are highly undemocratic. The juries of these proceedings consist of military officers selected by the high command. This means that the prosecution selects the jury and exercises total command authority over it. The administration nonetheless is resisting this option in the face of certain restrictions upon its absolute authority, namely a ban on testimony obtained through torture, and a requirement that the defendant be allowed to challenge evidence against him and to confront his accusers.
3) The president can decline to try any of the detainees for the duration of the so-called war on terror, holding them indefinitely without trial as “enemy combatants.” Given the extremely open-ended nature of the war, and the numerous fronts upon which it is being waged, prisoners might be imprisoned for many years.
4) The president could simply use “extraordinary rendition” to transfer the prisoners to be tortured in other countries by U.S. client regimes. They could likewise transfer the prisoners to so-called “black sites”—secret CIA torture prisons located principally within the countries of the former socialist bloc.
5) The most likely outcome is for Congress simply to pass new laws and thus override the narrow restrictions placed upon the executive branch by the Hamdan ruling. The administration has found wide sympathy from House Republicans for legislation authorizing the military tribunals in precisely the form created by the Bush administration. Candace Miller, a Republican from Michigan, suggested, “We could just ratify what the executive branch and the DOD [Department of Defense] have done and move on.”
Providing legal cover
Indeed, the Supreme Court has provided encouragement for Congress to enact a broader legal cover for government
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In the text of its ruling, the Supreme Court cuts to the heart of the matter: “The military commission at issue is not expressly authorized by any congressional Act.” In short, the existence of the commissions themselves is not the central matter. What’s in question is who has the right to authorize them.
The Hamdan ruling concerns what is essentially a procedural dispute among the ruling class itself. What is at stake is not the right of the ruling class to carry forth its abuses with impunity. Their power to do so, as a class, is not being questioned or challenged. What has been impinged is merely the power of one key administrator to act unilaterally. But for the thousands of prisoners enduring continued torture and abuse from within the walls of the Empire’s growing system of prison camps, the Hamdan ruling has changed nothing.
