Castan Centre for Human Rights Law

Richard Bourke

Louisiani Crisis Assistance Centre


I was very kindly invited by the Castan Centre to contribute to a review of some of the significant events in human rights in 2004, more specifically, the continuing developments surrounding Guantanamo Bay.  You all read the newspaper and have no doubt followed what has been happening and rather than spend time telling you things you already know, I think it is better if we spend some time talking about what it all means for international human rights.

A quick review of the last twelve months

First though, a thumbnail sketch of some of the important events in 2004 regarding Guantanamo Bay and the US war on terror.  During the course of this last twelve months:

·        The United States Supreme Court agreed to hear legal challenges to the detention of the Gitmo prisoners as well as Padilla and Hamdi.

·        The Court handed down its various rulings in these cases.  The Rasul litigation, dealing directly with Guantanamo, was carefully tailored to raise only a narrow issue of statutory construction and on that issue Rasul and the others succeeded – the Court held that they had access to the habeas jurisdiction of the federal courts, where they could argue about the legality of their detention.  In Hamdi, the Court delivered a doubled edged judgment, holding that American citizens could be detained as ‘enemy combatants’ but also holding a right to some due processs and judicial review to ensure that this has been provided.  In Padilla, the Court ducked the issue by issuing a somewhat Byzantine ruling on jurisdiction under the habeas statute.

·        Allegations of mistreatment and inhumane conditions at Guantanamo Bay were dwarfed by the graphic and disturbing images of Abu Ghraib.  These images put a lie to President Bush’s statements in 2003 that torture was un-American and that anybody who said it was going on knew nothing about America.  It was no longer possible to take as an article of faith that such things would not be done by the Americans. Unfortunately, the Abu Ghraib scandal also shifted the bar, creating a new standard of proof of contemporaneous colour photography in order to support allegations of torture and mistreatment.  It also cemented the perception of torture as a physical, rather than a psychological violence.

·        The corrosive effect of the human rights violations at Abu Ghraib was swiftly given voice.  On July 1, 2004 US troops raided the offices of the newly sovereign Iraqi interior ministry only to find over one hundred captives chained and blindfolded and undergoing abusive interrogation. A bodyguard for criminal intelligence chief Hussein Kamal admitted that beatings had taken place. Nashwan Ali said a US military policeman had asked him why the prisoners were beaten. "I said we beat the prisoners because they are all bad people. But I told him we didn't strip them naked, photograph them or f--- them like you did." (The Guardian, July 1, 2004)

·        The tragic persecution of former Guantanamo Chaplain, James Yee, continued its course.  The investigation and trial – what should have been a model of the efficiency and reliability of military investigations and trials - quickly became a farce.  Yee was released from months of maximum-security custody but placed on new charges of adultery and downloading porn. 

·        In a partial response to the court’s ruling in Rasul, the Bush administration established Combatant Status Review Tribunals.  The CSRTs are designed to provide a level of Due Process sufficient to fend off judicial review.

·        As at earlier this week 422 prisoners have had hearings, before the tribunal.  One has been released, 143 have had their detention continued and 278 cases are pending.  Another 130 prisoners are awaiting hearings.  Almost half of all prisoners have declined to attend the CSRTs.

·        The prosecutions of the handful of prisoners on Guantanamo facing charges got off to a rocky start.  Attempting to showcase the commission hearings as a model of military justice the US authorities instead put on a ridiculous pantomime the response to which, both at home and abroad, ranged from derision to horror.  It has to be remembered that they had been conducting actual dress rehearsals for months in preparation for the show.  This may be what they mean by the phrase “theatre of war”.

·        Most recently the ability to prosecute any of those charged under a military commission process has been thrown in to doubt by the federal court’s ruling in Hamdan – holding that for all the President’s designations and the CSRT’s the authorities have still not had a competent authority determine if the prisoners are prisoners of war or not.

·        Over the last two days the story has continued to unfold with the US now asserting in federal court that it has the right to go to Switzerland and detain grandmothers who mistakenly donate to Afghan charities, unaware that some of the money is used to support terrorists.  Central to the administration’s position is the argument that America is at war and so it is for the executive government to do what it wishes without the strictures of the Bill of Rights, human rights or judicial supervision.

However, for all of the set backs and blows the US administration has taken, twelve months ago there were about 680 prisoners being held at Guantanamo Bay and today that figure still stands at about 550.  Of those, only about one in ten are represented by lawyers and only four have been charged.  The names of hundreds of others still remain unknown.  Only 144 have been provided the internal review of the Combatant Status Review Tribunals and only one of those has been found by this process to be improperly held and has therefore been released.

It is easy to become despondent when thinking about the wholesale disregard of human rights and the attack on international humanitarian law that we are seeing as the US attempts to dismember the Geneva Conventions.  However, if we become despondent it is only because we don’t really understand the nature of human rights and what the Bush administration’s attack upon them means.

George Bush as King

As you will have seen from the program, the title of my little chat refers to the madness of King George and I think this is what we should talk about for a little while. 

About four years ago George W. Bush succeeded his father as the leader of the world’s most powerful country, commanding the world’s most powerful military and as the self-titled leader of the free world.  There had been a brief interregnum during which William the Pretender of Little Rock had seized the throne but that period now behind them the Bush line has cemented its reign and Jeb, the Crown Prince, appears to be next in the line of succession.

We cannot understand the actions of a king without understanding the essential nature of the king we are dealing with.  So, if President Bush is a king, we must ask, what kind of a king is he?

Philosopher King

Perhaps he is a Philosopher King, immortalized by Plato as that ideal of virtue best suited to rule.  Such a king would be moderate, courageous and just with a love of knowledge and engaged in a pursuit of an ultimate reality.  After all, in 2002 President Bush did offer this:

People say, how can I help on this war against terror? How can I fight evil? You can do so by mentoring a child; by going into a shut-in's house and say I love you.

George W. Bush, Washington, D.C., Sept. 19, 2002

That is pretty deep.

Maybe the idea of President Bush as Philosopher King should not be too quickly dismissed.  After all, it is inherent in the concept that the ways of a Philosopher King are not to be understood by the rabble, which must accept the leadership of this elite class as an article of faith.  Who are we to say that we are right and President Bush is wrong:  answer carefully because this is the rhetorical question posed by a large slice of the American voting public.

However, a Philosopher King would not seek leadership but have it thrust upon him by popular acclaim – that is the popular acclaim of the masses, not of the majority of the Supreme Court.    Also, a Philosopher King is expected to be the fount of knowledge, with an ability to see more than just shadows cast on a wall.  I don’t think Socrates would accept as a philosopher king a man who said:

I’m not the expert on how the Iraqi people think, because I live in America, where it’s nice and safe and secure.”

George W. Bush, Washington D.C., Sep. 23, 2004

Finally, an American Philosopher King could be expected to stand on the shoulders of Thomas Jefferson, the man frequently labeled as America’s true Philosopher King.  If this were the case them President Bush would surely have heeded Jefferson’s words from over 200 years ago:

Is an enemy so execrable that, though in captivity, his wishes and comforts are to be disregarded and even crossed?  I think not.  It is for the benefit of mankind to mitigate the horrors of war as much as possible.  The practice, therefore, of modern nations, of treating captive enemies with politeness and generosity, is not only delightful in contemplation, but really interesting to all the world, friends, foes and neutrals.

Thomas Jefferson to Patrick Henry (1779)


If not a Philosopher King then perhaps President Bush is a theocrat.  Certainly he has claimed that his Presidency is an act of divine will and in the days after the September 11 attacks he described his war on terror as a crusade (September 16, 2001) – a chilling reminder of the many barbarous attacks the Christian knights launched on the Muslim world in an effort to capture Jerusalem.  However, any Christian Theocrat would surely understand the truth stated with poetic simplicity by Augustine: that it is perverse

to imagine that our enemies can do us more harm than we do to ourselves by hating them, or that by persecuting another man we can damage him more fatally than we damage our own hearts in the process.

St. Augustine of Hippo, Confessions, Book I, Chapter 18.

While Augustine was talking about the harm man does to himself within the Christian faith by ignoring the Commandment to love thy neighbor, this truth is also central to the philosophy of universal and inalienable human rights. The preamble to the Universal Declaration of Human Rights begins with the words:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Augustine’s truth is also expressive of the sort of pragmatism that sponsored the widespread acceptance of the Geneva Conventions and the rules of war in the first place.  It is for that reason that in this last year we saw an amicus brief filed in the United States Supreme Court by former military commanders, diplomats and POWs urging restraint and compliance with the Conventions if for no other reason than to protect American troops in the field.

Mad King

The sad truth is that George W Bush is a mad-king, bearing a more than passing resemblance to his namesake, King George III.  King George III assumed the throne of England in 1760 and ruled, for the most part as a wartime king, until 1811, before his death in 1820.

Like President Bush, King George III, after getting in to power, launched upon a campaign to aggregate political power back into the hands of the executive, perceiving that it had drifted too liberally to the other arms of government.

King George III was the despot against whom the American colonies revolted.  The complaints against King George III are articulated directly in the Declaration of Independence and bear a striking resemblance to the complaints now made of President Bush:

·        He has affected to render the military independent of and superior to the ###### power.

·        Transporting us beyond the seas to be tried for pretended offenses.

·        He has made the judges dependent upon his will alone for their tenure and pay.

·        We have petitioned for redress in the humblest terms and been answered only by repeated injury.

And, of course, King George III expressed his famous insanity in his speeches, peppering them with the word peacock amongst his other inanities.  But, King George’s famous opening remarks to his court, “My Lords and peacocks . . .” pales by comparison with some of the pearls that have dropped from the President’s lips and his use of the word peacock becomes a quaint eccentricity when compared with the President’s constant and often nonsensical insertion of the word terror into sentences.  One of my favorites was his January 2003 justification for the invasion of Iraq:

The war on terror involves Saddam Hussein because of the nature of Saddam Hussein, the history of Saddam Hussein, and his willingness to terrorize himself.

George W. Bush, Grand Rapids, Mich., Jan. 29, 2003

Catholic school boys around the world blushed with guilt and shame when they heard this pronouncement.

The Madness of King George

There are a number of ways in which the case can be made to prove the madness of King George but I want to concentrate on one: the Geneva Conventions. 

It has long been recognized as a sign of madness to battle phantoms of the mind’s own creation and in the war against international humanitarian law launched by the Bush administration this is exactly the madness that we see.

King George and his court, so compelled by the idea of executive power and driven mad by jealousy at the thought that this power might be challenged, have resolved to destroy international humanitarian law.

But in doing so they have fundamentally misunderstood the nature of human rights and of human rights law.  I think maybe it is because people call it a “body of law” that they have treated it as a corporeal enemy, trying to defeat it by raining blows down upon it.

The plain truth, that everyone involved in the struggle for international human rights must remember or be labeled as mad as King George, is that this is not the nature of human rights.  Human rights and the principles underlying humanitarian law started as ideas and their true power lies in their force as ideas.

The Geneva Convention is an aspirational document which imposes scant burdens on a military power and has no realistic method of enforcement.  It represents no real threat to executive power and the Bush administration could have done virtually everything they have done while facially complying with the convention.

In the context of detainees, all that Geneva requires is that those detained be brought before a competent tribunal to have determined whether they are prisoners of war or not.  If they are, then their crimes must be tried before a nation’s own court martial system and kept in modestly humane conditions.  If they are not, then their protections are limited but torture, cruel and inhumane treatment remain prohibited.

All that the US had to do was convene a competent authority to determine that the prisoners were not prisoners of war.  King George could have asked his brother, the Crown Prince, to act as the competent authority and after hearing the allegations, considering the definitions and thinking about it for a moment Prince Jeb could have pronounced that none of them met the definition of a prisoner of war.

We could all have sat around and complained that the hearings were not sufficient or that the decisions did not make sense or that the concept of uniforms needed to be modernized and that it was unfair to apply the literal language of the conventions as they were written a long time ago.  None of that would have mattered, none of it would have had any legal traction in any court or tribunal in the world and the US could have proclaimed its full compliance with Geneva, barely missing a beat.

But look at what they did instead.  They have actively pursued a course of defying the minimal requirements of Geneva and deliberately designing their process to not include a competent authority and to not apply Geneva’s definitions.  They have done this because they see Geneva as a barrier to untrammeled executive power, a barrier that must be smashed down and swept aside.

The barrier exists only in their minds.  Far from a solid bulwark, a “body of law” that must be engaged head on, Geneva is really just a set of gossamer threads, more like a spider web than a wall.

Like a spider web, it is simple enough to step around Geneva or gently pluck one’s way through.  However, liked crazed children the Bush administration has set about attacking the spider web and now finds itself covered in sticky strands that advertise to all the world their crime.

They can’t get rid of the power of the Geneva conventions – their power is as an articulation of an idea that has existed for thousands of years.  It is an idea that Augustine understood and that even Jefferson on his good days could comprehend.  It is an idea that has been articulated by soldiers for soldiers as a result of the lessons of war.  It is a standard against which King George’s conduct will continue to be measured no matter what he does.

The more savage their attack the better for us and the better for international humanitarian law.  If they had appointed a sham competent authority and gone through the dance of an Article 5 tribunal the rights of the detainees would, in reality, have been no better respected and international humanitarian law would have displayed its weakness.  Because of the extremity of their attack they have allowed international humanitarian law to display its strength.  It is an idea and a standard against which they are measured and found badly wanting; so badly wanting that: the Hamdan court has been provoked to declare that half of Geneva is actually domestic law; they have opened the door to prosecutions of the US in Germany for war crimes; and, that they have driven themselves in to a corner in which they have declared their absolute right to detain as enemy combatants Swiss grandmothers who donate to Afghan charities.

You can’t do away with human rights; they are inherent and inalienable.  By standing toe to toe with them all that you do is invite the sort of comparisons that any sane King would avoid.

I think I will stop here and perhaps it is fitting that I leave you with the words of King George in Oregon from only a few months ago:

"I hope you leave here and walk out and say, 'What did he say?'"

George W. Bush, Beaverton, Oregon, Aug. 13, 2004