Presidents have long packed the courts with friends and fellow travelers to prevent their policies from being derailed and their prerogatives curbed. But few have been as blatant as President George W. Bush, who has rigged the court created to review appeals from prisoners detained in the war on terrorism. Under the guidance of Secretary of Defense Donald Rumsfeld, Bush has picked judges who are either cronies of Rumsfeld or enthusiastic champions of the Bush administration view that the norms of international law do not apply to the United States — or both.
On December 26, the Defense Department issued Military Commission Instruction No. 9, which established a Review Panel of four judges to hear appeals from the lower military tribunals. These tribunals were created in March 2002 to try non-citizens hauled into U.S. custody for alleged acts of terrorism or membership in terrorist groups.
Instruction No. 9 provides that the Review Panel shall be staffed with “only individuals who are well qualified by virtue of their experience, impartiality and judicial temperament.” Yet none of Rumsfeld’s four designees, whose average age is 73, has acquired a reputation as an advocate of civil rights or a defender of due process. Indeed the “impartiality” criterion was scrapped as blithely as the Geneva Conventions were jettisoned at Abu Ghraib and Guantánamo. In its place was substituted fealty to the Bush administration posture that the battle against terrorism permits the United States to operate outside the strictures of international law.
The most prominent Bush acolyte appointed to the Review Panel is the Republicans’ favorite Democrat, Griffin Bell, who was the U.S. Attorney General during the Carter administration and before that a federal appellate judge. At 85, Bell has a lengthy record as an apologist for entrenched political and monied interests.
In 1961, as chief of staff for Georgia’s segregationist governor Ernest Vandiver, Bell counseled Vandiver to resist federally ordered desegregation at the University of Georgia. Five years later, Bell was a judge on a federal court that upheld the Georgia state legislature’s refusal to recognize the election of Julian Bond to that body because of his opposition to the Vietnam War. Bell and a judicial colleague were appalled by Bond’s criticism of the war: “The [antiwar] statement is at war with the national policy of this country.”
Tagged by the Atlanta Journal-Constitution as a “legal Mr. Fix-it for large corporations facing legal crises,” Bell provided his services to Exxon executives during their Valdez oil spill travail and also assisted George H.W. Bush during Iran-Contra. A month after Rumsfeld appointed him to the review tribunal, Bell told the Atlanta Journal-Constitution, “I support President George W. Bush for reelection because his leadership is crucial during this time of our nation.” The Canons of Judicial Conduct proscribe political endorsements of elected officials by judges, especially of those officials whose actions the judge might be called upon to review. But Bell, much like his sponsors, advocates exceptional behavior for exceptional times.
The four military appeals judges, who will hold the rank of major general while sitting, will inevitably be called upon to review the circumstances surrounding a detainee’s arrest and any confession the detainee claims was extracted as a result of torture and brutality. It also is likely that the accused will go to the Review Panel to challenge the military tribunal trial procedures, which allow for a limitless notion of relevance, abandonment of the hearsay rule, restrictions on cross-examination and discretion by the tribunal to conduct secret hearings.
Such challenges are likely to be rebuffed quickly, as Bell and another member of the Review Panel, William T. Coleman, have served as Rumsfeld appointees on the very committee that crafted the trial procedures.
Coleman is a Philadelphia lawyer whose relationship with Rumsfeld dates back more than two decades to when he served as secretary of transportation in the Ford administration from 1975 – 1977 and Rumsfeld was in his first term as secretary of defense. Coleman’s ideological docility is confirmed by his membership on the Trilateral Commission, a collection of top-ranking U.S., European and Japanese government and corporate officials who champion globalization and encouraged the invasion of Iraq.
Frank J. Williams, at 64, is the youngest member of the Review Panel. He currently serves as Chief Justice of the Rhode Island Supreme Court, the court of last resort for the Rhode Island judiciary system in which I serve as a trial judge. Writing in a Providence Journal op-ed in February, Williams prejudged the status of the Guantánamo prisoners: “It is clear that the September 11 terrorists and detainees, whether apprehended in the United States or abroad, are protected neither under our criminal-justice system nor under the international Law of War.” This is the Bush company line and it is patently wrong.
The United States, having signed and ratified the Geneva Conventions, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights, is lawfully obligated to provide prompt and fair opportunities for legal redress to non-citizens it is holding as alleged participants in terrorist activity. Under no circumstances may the United States torture and humiliate detainees in the manner described in reports by the International Committee of the Red Cross about Abu Ghraib and Guantánamo Bay.
Here is not the place to parse these treaties, which of course are part of the law of the land. But two things are beyond debate: Article 5 of the Geneva Convention requires that if there is any doubt as to whether a prisoner falls into a category of persons protected by the treaty “such person shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal”; and that the International Covenant on Civil and Political Rights recognizes that in times of war and chaos some rights may be suspended, but the Covenant also makes clear that regardless of circumstances, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
Contrary to the commands of the Canons of Judicial Conduct, Williams has no compunction about expressing his opinions on the legal status of the detainees even after his appointment to the Review Panel. In the same Providence Journal article, Williams likened the threat from terrorists to the jeopardy the nation was in during the Civil War, although marauding armies and rival governments on our soil have yet to be spotted, even by Fox News. On May 5, Williams addressed the right-wing Heritage Foundation in Washington and reiterated his opinion that non-citizen detainees were not subject to international legal protection, but declared that he could “fulfill his obligation to be fair and impartial.”
The fourth horseman of this powerful and unbridled judicial apocalypse is Edward G. Biester, Senior Judge of the Court of Common Pleas of Bucks County, Pennsylvania. Biester became a close friend of Rumsfeld when the two served together as Republican members of the House of Representatives. According to the Philadelphia Inquirer, the men now have vacation homes near each other in Taos, New Mexico. In fact, Taos County Clerk records indicate that Biester bought property from Rumsfeld in 1985.
What can the detainees and their lawyers — not to mention an international public revulsed by revelations of U.S. detention and interrogation practices — expect from this septuagenarian and bellicose court? Which of these judges has a background that encourages any hope of fairness?
As rigged by Rumsfeld, the Review Panel is congenitally incapable of being “fair and impartial.” Rather, with its power to determine life or death, it is a political weapon every bit as lethal as an automatic rifle. It is incumbent upon the lawyers for the detainees, human rights activists and those members of the media and the Congress who are at last noticing the debacle into which we have been led to expose this sham court and bring about its dismantling.