Neo-Conned! Again

by D Liam O'Huallachain

  8. The Resolution did not authorize the indefinite detention of persons seized on the field of battle. Although detention of individuals seized in the armed conflict is provided for under and according to Article 21 of the GPW.

  9. Iraq, during the time that Petitioner was Head of State, was no direct threat to United States security. In fact at the time of the United States invasion in March 2003, Iraq was cooperating with the United Nations in relation to the inspection and destruction of specified aspects of its national defense system. It now appears, despite representations by the Respondents to the contrary, that Iraq and Petitioner had abided by the provisions of United Nations Security Council Resolutions calling for the destruction of weapons of mass destruction.

  10. Furthermore, no American casualties were caused by the Iraqi government by acts of aggression directed against the United States under Saddam Hussein's presidency, prior to, or in the interim between the invasions of Iraq by successive American Presidents. Neither is there any significant evidence linking Iraq to al-Qaeda.

  11. Nevertheless, on 19 March 2003, the United States, at the direction of Respondent Bush, began a massive military campaign against the Iraqi people and the Iraqi government headed by Petitioner.

  12. In response Petitioner authorized the use of force against the United States military to repel invasions of his country and in furtherance of his responsibilities as the Head of State of Iraq to protect the territorial integrity and political independence of Iraq from foreign invasion. These actions were taken in accordance with Article 51 of the Charter of the United Nations which provides for the right of self-defense.

  13. The invasion that led to the arrest of Petitioner, on the other hand, was not in accordance with international law. It was a violation of the seminal Article 2, paragraph 4 of the Charter of the United Nations which prohibits the use of force against the territorial integrity and political independence of a country.

  Summarizing the facts of the President's detention are an additional nine points.

  17. Since his capture on or around 13 December 2003 Petitioner has been held incommunicado in Respondents' unlawful custody.

  18. Petitioner's exact whereabouts are unknown because the United States government refuses to disclose this information.

  19. Petitioner is being held incommunicado and is reportedly being interrogated repeatedly by agents of the United States Departments of Defense and Justice, though he has not been charged with an offense, nor has he been notified of any pending or contemplated charges. Petitioner has made no appearance before either a military or civilian tribunal of any kind, nor has he been provided counsel or the means to contact counsel. Petitioner is not known to have been informed of his rights under the United States Constitution, the regulations of the United States Military, the GPW, the ICCPR, or the ADRDM. Indeed, the Respondents have taken the position that the Petitioner should not be told of these rights. As a result, the detained Petitioner is completely unable either to protect, or to vindicate his rights under domestic and international law.

  20. Petitioner has been allowed to write two or three very brief communications to his wife, one of which was dated 21 January 2004 and delivered by the International Committee of the Red Cross to Petitioner's family on or around 21 February 2004. This communication had nine out of fourteen lines censored out of it, making it hardly understandable.

  21. Former Iraqi President Saddam Hussein was detained as a consequence of the illegal acts of aggression by the United States that were authorized and overseen by the Respondents.

  22. The Respondents have also admitted that the Petitioner is a legitimate Prisoner of War to whom the provisions of the Geneva Convention on Prisoners of War apply fully.

  23. Respondents have also threatened to turn over Petitioner to the Iraqi Interim Government on or about 30 June 2004.

  24. At the same time Respondents have also threatened to turn Petitioner over to the Iraqi Interim Government despite the fact that this entity has indicated that it will not provide the minimum standards of due process that are guaranteed to Petitioner under United States and international law.

  25. The detained Petitioner is not lawfully detained because his detention is in violation of international and United States law.

  The petition then gets to the heart of the matter: requesting that the Supreme Court grant the writ of habeas corpus such that Mr. Hussein might challenge the legality of his continued detention. This request is made based upon three stipulations: (1) the President's due process rights under the Fifth and Fourteenth Amendments of the United States Constitution have been violated; (2) his due process rights under international human rights law have been violated; and (3) his due process rights under United States military law, Iraqi law, and international humanitarian law have been violated. These three stipulations are explained and argued in detail in the subsections to the petition devoted to each stipulation.

  The essence of the first subsection is explained in four points dealing with the U.S. Constitution.

  27. The Fifth and Fourteenth Amendments to the Constitution establish the most basic rights of individuals in the custody of the United States. These rights include, inter alia, the right to challenge one's detention and to be free of arbitrary detention, the right to legal counsel of one's choosing, and the right to know charges against oneself.

  28. By the actions described above, Respondents, acting under color of law, have violated and continue to violate the right of the detained Petitioner to be free from arbitrary, prolonged, and indefinite detention, in violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution ….

  30. Although Petitioner was apprehended after Respondent George W. Bush announced the end of major hostilities on 1 May 2003, and therefore no longer constituted a threat to American security in Iraq, Petitioner has been and continues to be denied his basic Constitutional right to due process of law.

  31. The detention of Petitioner violates the Fifth and Fourteenth Amendments of the United States Constitution.

  The second subsection likewise details the violation of Mr. Hussein's rights under international human rights law. A few of the essential points are sufficient to give the thrust of the argument, though what follows are only eight of 21 points detailing the violation of Mr. Hussein's rights.

  36. The widespread acceptance of the basic constituents of the right to fair trial by more than 150 states who have ratified [the International Covenant of Civil and Political Rights (ICCPR) and the American Declaration on the Rights and Duties of Man (ADRDM)] indicates that these rights have developed into Customary International Law.

  37. All of these rights are violated by the regime under which Petitioner is being held and by the consistency and procedures of the court before which Petitioner is threatened with trial.

  38. Petitioner's incommunicado detention denies him the right to challenge his arrest before any court ….

  43. Despite being held incommunicado for more than six months Petitioner has not been informed of any charges against him.

  44. Petitioner has … been denied the right to adequate facilities and time to prepare defense, including his right to consult a lawyer of his own choosing by his incommunicado detention.

  45. Petitioner's right to a presumption of innocence has been violated by statements made by Respondent George W. Bush indicating that Petitioner is a very “bad person” who deserves to be executed.

  46. The lengthy delays in charging Petitioner as well as the failure to allow him facilities to prepare his defense including access to lawyers violate his right to a trial without undue delay.

  47. The fact that the prosecution is preparing a case against Petitioner, including questioning witnesses, while Petitioner lacks the basic necessities for preparing his defense also violates Petitioner's right to examine witnesses and to call witnesses under same conditions as the prosecution.

  Finally, the petition points out the violation
of the Petitioner's rights under the terms of United States Military Law, Iraqi law, and the GPW. Of the seven points comprising this subsection, three are sufficient to capture the nature of the rights violation.

  55. United State Military Law, specifically Army Regulation 190–8 (Enemy Prisoners of War, Retained Personnel, Civilian Internees, and Other Detainees), OPNAVINST 3461.6, AFJI 31–304, MCO 3461.1 (1 October 1997) at Section 3–8, pp. 10 and 11, requires that captured enemy combatants be accorded the right to a fair trial, including being promptly charged and being given adequate facilities including counsel of their own choosing.

  56. Article 15, especially paragraphs C through J, of the Law of Administration for the State of Iraq for the Interim Period (8 March 2004) provides for the protection of Petitioner's right to a fair trial before an impartial and independent court, the right to challenge his detention, with a public trial, and the full right of legal counsel of his choosing. No court, however, currently exists in Iraq that can ensure these guarantees.

  57. Articles 84, 99, 100, and 105 of the GPW also require that a Prisoner of War be provided with the basic guarantees of due process including the right to be judged by an independent and impartial tribunal (Art. 84(2)); the right to adequate facilities and time to prepare defense (Art. 99); the right not to be punished for an act that was not a crime at the time of commission (Art. 99(1)); the right to counsel (Art. 99 and 105); and the right to be informed of criminal charges (Art. 100).

  The second main contention of the petition is that any attempt to suspend the Petitioner's right to habeas corpus is a violation not only of the U.S. Constitution but also of international law. Two subsections detail the way in which each is violated by the Respondents' implicit attempt to deny Mr. Hussein the right to habeas corpus. In the first we have adduced a compelling discussion of the sacredness of the Great Writ in terms of the Constitution and the seriousness of its violation in this case.

  61. To the extent that Respondents' actions prevent any challenge to the legality of the Petitioner's detention by way of habeas corpus, their action constitutes an unlawful suspension of the Writ, in violation of Article I of the United States Constitution.

  62. The right to habeas corpus has been described by this Court as the most “precious safeguard of personal liberty” for which “there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U.S. 19, 26 (1939). It is the most basic, and in this case, the ultimate, protection for the individual against arbitrary action by the government. Suspension of habeas corpus, even in extraordinary circumstances must not take place lightly.

  63. Most recently this Court has held that detainees such as Petitioner have basic due-process rights, including habeas corpus. Rasul v. Bush, 542 U.S. (2004). Petitioner in this case is in a similar position to the detainees in Guantánamo in that action, as he is detained by the United States outside of the territory of the United States but under the exclusive jurisdiction and control of the United States.

  64. In this case, Respondents have not suspended the Writ of Habeas Corpus by law, but instead are attempting to do so implicitly. Respondents deny Petitioner his right to habeas corpus by holding him incommunicado and refusing him access to his lawyer or the courts. Such an implied suspension of habeas corpus must be rejected, according to the longstanding jurisprudence of the Court. See, e.g., Ex parte Yerger, 8 Wall. 85, 105 (1869) and Felker v. Turpin, 518 U.S. 651, 660–62 (1996).

  65. Moreover, even those rare precedents where the Court has allowed the suspension of habeas corpus in extraordinary circumstances, are distinguishable from the present case. See, for example, Johnson v. Eisentrager, 339 U.S. 763 (1950). In the present case Petitioner does not seek his release from custody or the exercise of any right that would jeopardize the national security of the United States. Instead, Petitioner merely seeks his basic rights of due process with this application for the Great Writ. As long ago as the nineteenth century, Chief Justice Taney held that the Great Writ applied even in wartime. Ex parte Merryman, 17 F. Cas.144 (1861). The human right to fair trial under International Law has evolved into a non-derogable human right in the time since both of the decisions just quoted were handed down. In view of this development the right to apply for habeas corpus has gained irrefutable weight to the argument that it is the right of every individual in a civilized country showing even minimal respect for the rule of law to be able to challenge his or her detention.

  The second habeas corpus subsection details the violation of international law implicit in the Respondents' conduct towards Mr. Hussein.

  68. To the extent that Respondents prevent any challenge to the legality of the detention of Petitioner by way of denial of writ habeas corpus, their action constitutes an unlawful Suspension of the Writ of Habeas Corpus, in violation of International Human Rights and Customary International Law.

  69. The Inter-American Court of Human Rights has repeatedly stated that the writ of habeas corpus cannot be suspended, as it is an essential guarantee of all other rights. Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8, American Convention on Human Rights), Advisory Opinion OC-9/87 (October 6, 1987), Inter-American Court of Human Rights (Ser. A) No. 9 (1987) and Habeas Corpus in Emergency Situations (Arts. 27.2, 25.1 and 7.6, American Convention on Human Rights), Advisory Opinion OC-8/87 (January 30, 1987), Inter-American Court of Human Rights (Ser. A) No. 8 (1987).

  70. The holdings of the Inter-American Court of Human Rights represent highly respected and authoritative interpretations of international law in the Americas. They indicate that the prohibition on suspending the habeas corpus has achieved the state of customary international law.

  After a brief discussion of the violation of the Petitioner's rights to be treated humanely that is constituted by the Respondents' threat (since acted upon) to turn Mr. Hussein over to the Iraqi Interim Government, the petition concludes with a “prayer for relief.” This “prayer” requests the U.S. Supreme Court to order that the Respondents: (1) refrain from turning the Petitioner over to any entity that will not safeguard his rights; (2) allow him to meet with legal counsel; and (3) cease all interrogations while the petition is pending. It further requests that the Court (1) cease all interrogations while the litigation is pending; and (2) declare that the detained Petitioner is being held in violation of (a) the Fifth and Fourteenth Amendments to the United States Constitution; (b) customary international law; (c) the ICCPR; (d) GPW; (e) the ADRDM; (f) the regulations of the U.S. military; and (g) international humanitarian law.1

  On October 4, 2004, the U.S. Supreme Court rejected the Iraqi President's petition for a writ of habeas corpus with in forma pauperis status2 without an affidavit. The writ had been filed in this way to highlight the United States government's denial of the Iraqi President's right to his own monetary resources. The Court essentially stated that the legal team must have access to their client to obtain his signature on the affidavit attesting to his in forma pauperis status, despite the fact that the United States government denied and continues to deny the legal team any serious access to its client. The Court did not rule upon the motion to file in forma pauperis, nor upon the habeas corpus petition. The petition is thus still pending before the Court but must now be converted into a “paid” petition.

  The Responsibility of Government Signatories to the Third International Geneva Convention

  Another important initiative on behalf of Mr. Hussein was launched during the latter part of September and the beginning of October 2004. Representatives of the legal team met with the representatives of numerous UN missions in New York City, including the Iraqi mission. Only four – the United States, the United Kingdom, Italy, and the European Union (then chaired by the Netherlands) – refused meetings. These unaccommodating missions indicated that they did not believe international human rights law to be the concern of private individuals, but only of States. At other missions, ambassadors or legal advisors met with a representative of the legal team.

  The meeti
ngs emphasized that the human rights of due process and fair trial encompassed both in international human rights law and international humanitarian law were not being respected. On October 4, 2004, the team sent a letter to the heads of thirty permanent missions to the United Nations emphasizing that the detention of individuals in Iraq was the result of an illegal invasion and occupation by the United States, and that the United States continues to be an illegal occupier as well as the detaining power over the deposed President of Iraq. The letter also points out the United States' and all other states' responsibilities for ensuring the protection of human rights.

  The essentials are as follows:

  First and foremost, I respectfully draw your attention to the obligations your government has as a State Party to the GPW as well as under international human rights law, to take all necessary measures to ensure the rights of prisoners of war.

  Among these rights is the right of a prisoner of war to receive communications from one's family and lawyers, the right to effective legal representation by a lawyer, the right to know the charges against oneself, the right not to be charged for acts for which by law there was no criminal responsibility at the time they were committed, and, most importantly, the right to a trial before an independent and impartial court. Each of these rights has been, and continues to be, violated. Moreover, the violations are so serious that the damage has become irreparable and must have serious consequences for any future trial.

  I also respectfully remind you that under both well-established customary international law and under Article 42 of the Regulations annexed to the Fourth Hague Convention on Land Warfare (1907) the United States remains the occupying power in Iraq. As is clear from Article 42, occupation is determined by a de facto evaluation of circumstances. Only an independent government that has been chosen by the people of Iraq – not merely by the occupying power – can bring the occupation to an end.