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The Indian Newspapers report (Sunday TOI, p. 12) of the Obama Administration in the United States of America now doing away with the phrase ‘enemy combatant’; a designation for terror suspects to justify their detention in Guantanamo Bay.

After Hamdan v. Rumsfeld, the Military Commissions Act 2006 gave power to the Bush Administration to define an ‘unlawful enemy combatant’ and decide whether the laws of war as codified in the Geneva Conventions and existent in customary international law were applicable to such person or not. The Act also contained provisions removing access to the courts for any alien detained by the United States government who is determined to be an enemy combatant, or who is ‘awaiting determination’ regarding enemy combatant status.

This idea of ‘unlawful enemy combatants’ was thus used as a justification to hold detainees in Guantanamo bay and to deny them access to habeas corpus. The United States Supreme Court has deliberated the legality of this notion in may case law. [See Boumediene v. Bush, 128 S. Ct. 2229 : Rasul v. Bush, 542 U.S. 466 (2004) ]

One of the promises of the Obama Campaign was to shut down Guantanamo Bay and rightly so, the moment he came to power he decided to shut down that ill fated detention centre within a given period. In In re: Guantanamo Bay Detainee Litigation, the Washington District Court is deliberating on the legality of such detention and the Obama Administration has recently filed a memo in that Court regarding its ‘new understanding’ of the situation in Guantanamo Bay. The memo now says;

“The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.”


Thus, in as much as the power to arbitrarily define as to who is an enemy combatant has been done away with, there is a fixed definition that has been incorporated in the Authorisation of the Use of Military Force (AUMF). But sadly, this however does not change anything for the prisoners in Guantanamo as the consequences of this change are futile and they shall still remain in Guantanamo. This because, in as much as they may now not be enemy combatants, they still may have ‘substantially supported’ forces engaged in hostilities with the United States. 

My point then being, that newspaper reports in India that there has been a substantial change in the outlook are wrong and a deeper analysis is required to comment upon it.

What is laudatory however is the commitment of the Administration that the laws of war would be applicable to all the detainees thus doing away with the earlier discretion of the Bush administration as to whether the laws of war would be applicable or not.

The entire memo submitted to the DC Court is available here. 

See also Obama admin. to end use of term ‘enemy combatant’ . 


Amidst all the hype and hoopla that surrounds Obama’s first days in Office, it maybe worthwhile to take a step back and evaluate the implications of the Bush Presidency. Seldom has the post-Cold War world seen such tectonic shifts in many matters of global concern. These eight years, starting right from the doorstep of the new millennium, have dictated our thought, outlook and course of action. From January 20, 2000 to 2009, the most powerful political position of responsibility today was held by a mercurial personality, who managed to emerge both as the most and least popular President of the United States of America. Whether you adored him (like the corporate and industrial lobbies of the US) or loathed him (pretty much like the rest of the World), you just could not ignore George Walker Bush Jr. Here’s our take on what the Bush Era has meant for tomorrow.

1. Iraq, Afghanistan, the Middle East and the War on Terror.

Within one year of his taking over the US Presidency, George Bush witnessed the first major terrorist attack on an American metropolis in decades. 9/11, hence immortalized through its suffering and consequence, was pivotal in influencing the Bush administration’s foreign policy outlook towards West Asia and the Middle East. Following the launch of a global ‘War on Terror’, a belligerent Bush pursued the Al-Qaeda to the footsteps of the Taleban. Months later, Afghanistan was left in tatters, besieged by the armies of the West in a futile attempt to capture the masterminds behind the WTO strikes.

The President then trained his guns further East, onto Iraq, where the ‘outrageous’ and ‘tyrannical’ regime of Saddam Hussein had allegedly held Weapons of Mass Destruction. Portraying Iraq to be a threat to the precarious stability of the Middle East, the US assumed the patriarchal role of a superpower to chastise the rogue nation. The extant situation in Iraq is left for everyone to see; while the US is fighting a trillion-dollar war, Iraqis are struggling to find a foothold on the world map.

As the Bush Presidency is all set to be a bygone era, the world has been left reeling from an increased spate of terrorist attacks, raising incisive questions of the efficacy of a costly ‘War’.

2. The Environment and Climate Change

As a presidential candidate, Bush began his campaign with a pledge to clean up power plants and reduce greenhouse gas emissions. During the initial months of his first Presidency, he even sought to commit billions of dollars to fund ‘clean-energy’ technology. The President also assured the Congress, environmental groups and the energy industry of his full co-operation to secure a reduction in emission rates within a reasonable period of time. However, his subsequent volte-face on the matter, terming greenhouse gas reduction to be adversely affecting energy prices, shocked the environment-conscious community.

The Bush Administration also refused to implement the substantive content of the Kyoto Protocol, stating that “ratifying the treaty would create economic setbacks in the U.S. and does not put enough pressure to limit emissions from developing nations”. After years of subservience to the powerful oil and energy lobbies, environmental surveys at the end of Bush’s tenure indicated a marked increase in the US’ contribution to global warming and sustained ecological recklessness.

3. Human Rights and Guantanamo.

Guantanamo merits a separate post. The connecting link will be uploaded in a day’s time.

4. The State of the Economy.

The fag end of George Bush’s stint as the President witnessed the implosion of the mighty US financial sector, triggering a global economic meltdown. A consequence of hasty and often unmonitored actions of the corporate lobby, the financial downturn meant a loss of jobs for millions of people around the world in professional services. The chain-reaction of such a collapse is yet to cease, and major banks and industries continue to be bailed out by the day.

While we may have to dig deep to find positive lessons from the Bush regime, it is suffice to say that the period is dead and gone. May the Bush Presidency rest in peace.

Kudos to Arun for his excellent posts on the Mumbai terror attacks. (Parts I, II and III here)

The Lok Sabha today passed the bills calling for the setting up of the National Investigative Agency (NIA) and the Amendment to the UAPA calling for tougher laws to tackle terrorism. Ironic how it took a 26/11 to get all this down. The downside to this, can be summed up by lines from Aldai Stevenson’s famous speech, “The Nature of Patriotism” given in 1952;

“The tragedy of our day is the climate of fear in which we live, and fear breeds repression. Too often sinister threats to the Bill of Rights, to the freedom of mind, are concealed under the patriotic cloak of anti-communism.”

Aldai Stevenson then stated that the show of patriotism under that cloak is a phony. Then it was communism and today it is terrorism. The recent laws are witness to this.

Apologies for this delayed post. However, quite fortunately, the last Part of this three-pronged series coincides with two seminal events/publications.

1. CJI K.G. Balakrishnan’s piece on “Terrorism, rule of law and human rights” in The Hindu (Opinion Page).

2. The Union Cabinet’s nod for NSA Amendments and a new Investigation Agency.

KGB’s write-up/analysis of our contemporary security predicaments has been posted in his official capacity as the Hon’ble Chief Justice of India, and is remarkable for that very reason. The highest judicial officer in this country has clearly expostulated the need to maintain our constitutional ethos in place. He elucidates upon the role played by due process and rule of law in protecting human rights, even at a time when the nation is blinded by rage against a terror attack that left India reeling.

Adherence to the constitutional principle of ‘substantive due process’ must be an essential part of our collective response to terrorism. Any dilution of the right to a fair trial for all individuals, however heinous their crimes may be, will be a moral loss against those who preach hatred and violence.

On the other hand, the Union Cabinet has given the green signal to proposed amendments in the National Security Act, 1980 and a new Anti-Terror Investigative Agency (Part II of this series had enlisted the major provisions in the prospective legislation). In a chaotic post-Mumbai period when public sentiment and ire has been directed largely against the political class, it is important that the Government does not resort to populist methods to assuage this anger. A new and shiny array of ‘tough’ anti-terror laws might seem to be the perfect panacea to our security problems, but in reality they are nothing more than knee-jerk reactions.

Tougher anti-terror laws have had a chequered history in this nation’s democratic regime. Yet, they continue to be hot favourites among people and institutions who want a change in the Government’s attitude towards terror. Indeed, I remember a discussion in one of our Criminal Law classes at Nalsar where the topic in question was the efficacy of anti-terror laws like POTA, ULFA etc. The debate invariably spun around to the “Human Rights v. National Security” perspective, with a visibly emotional law professor eventually closing the arguments thus:

Those who might find favour with the concept of due process, and justiciable rights for the terror -accused will never step down from their ideal ivory towers till they lose a little finger in a blast or attack.

Surely, she spoke for a sizeable portion of the populace, who truly believe that India’s anti-terror must be incisive and deterrent to all who wreak havoc in its villages and cities. Take Qasab’s case for instance; the Mumbai Bar Association has forbidden its members to take up his defence. Does his obvious involvement in the terrorist attacks mitigate a constitutionally guaranteed right of legal aid? Doesn’t the lawyering community rush to defend the super-rich and mighty from all sorts of civil,criminal and commercial indictment, even when evidence is blatantly against them? Why treat Qasab exceptionally then? Is it because terrorism is an evil more equal than the other evils which plague civil society? Certainly, we have to draw the line, before the rule of law goes flying out of this polity’s windows.

The POTA has an abysmal conviction rate of 2%, and has hardly produced the desired results. The new face of terrorism does not operate like other societal crimes, and ‘deterrence’ is hardly any reason to come up with multi-fanged laws. That the terrorists in the Taj and Trident-Oberoi had no intentions of negotiating with the Government, and came readily prepared to die, must teach us an invaluable lesson. If the purpose of all anti-terror laws is to preserve public order, then we must embrace a systematic procedure to collect evidence, grant fair trials and opportunities. Without these safeguards, the law will never strike at the root of terrorism, for all the wrong people would be behind bars then.

Arundhati Roy wrote a blistering piece in Outlook India last week, and she says;

It was after the 2001 Parliament attack that the first serious questions began to be raised. A campaign by a group of lawyers and activists exposed how innocent people had been framed by the police and the press, how evidence was fabricated, how witnesses lied, how due process had been criminally violated at every stage of the investigation….The Supreme Court upheld the death sentence of another of the accused, Mohammad Afzal. In its judgment, the court acknowledged that there was no proof that Mohammad Afzal belonged to any terrorist group, but went on to say, quite shockingly, “The collective conscience of the society will only be satisfied if capital punishment is awarded to the offender” Even today we don’t really know who the terrorists that attacked Indian Parliament were and who they worked for.

The rallying calls against anti-terror laws must not be mistaken to be a blind push for seemingly facile human rights, but a warning against the nightmarish future of citizens losing faith in its own legal regime.

Ram Jethmalani stated that no lawyer should deny legal aid to Kasab, the lone terrorist apprehended in the Mumbai attcks, and that doing so would be a denial of justice.

The noted lawyer has made a point in this regard. Apart from having a constitutionally guaranteed right to legal aid, the Advocates Act forbids a lawyer to deny legal aid to anyone on the ground that they think he committed the offence. This is a fundamental practice in our legal system because no one is an accused until the court pronounces them as such.

Meanwhile, as Kasab pleads to the Pakistan govt. for legal aid, it must be understood that his trial cannot proceed without him having a lawyer. The way things are going on, any lawyer who defends him would be framed as a terrorist sympathiser. This is a catch 22 situation since lawyers are already refusing to defend him.

Readers may also read this piece on the Right to Legal Aid in India and on why Kasab must not be denied it.