Imagine the following scenario. Somewhere in the world, the United States fights a war and captures and detains enemy soldiers; or somewhere in the world, the United States captures and detains people it claims are terrorists. Those detained may have been arrested because of an informant’s tip or because of someone receiving a bribe for information regarding alleged terrorists; the tip and the information may or may not be reliable. Consequently, those arrested may be completely innocent. These people are flown to the United States naval base at Guantanamo Bay, Cuba, and imprisoned for years. 1 The captured soldiers are not accorded the rights of prisoners of war. The alleged terrorists are not charged with a crime. No one has access to attorneys or their family.
Maybe, someday years later,2 a few will be released, others may remain in Guantanamo indefinitely and others, possibly, will be tried by a special military commission.3 That trial may occur at Guantanamo, or wherever the United States chooses, even on an aircraft carrier.4 The trial may be entirely in secret. If they are found guilty, they may be executed and their bodies disposed of, possibly at sea.5 They might be found not guilty by the tribunal. However, even then, Secretary of Defense Rumsfeld has said that they may not be released.6 He has told us that this is a long war against terrorism; it may be a fifty-year war and until that war is over, if it ever ends, some will remain imprisoned at Guantanamo.7 This scenario is not far-fetched. Some of this is already occurring and if the Bush Administration is to be believed, the remainder may unfold.
One might think such governmental actions, so seemingly at odds with notions of fairness and liberty, could be challenged in the courts. One might believe that a court in the United States would make, at least, a determination as to the legality of the detentions and trials of those imprisoned. However, one would be wrong in so thinking. A petition for a writ of habeas corpus was filed on behalf of the detainees in Guantanamo, but the petitioners lost.8 They have lost not because the federal district court decided that what the government is doing is right, but because the court decided it could not even hear the case and determine whether the detentions were legal. Even though the detainees are imprisoned by the United States, the district court refused to look into their detentions. The federal court has ruled that it will not and cannot hear cases on behalf of non-citizens imprisoned at Guantanamo.9 It is as if Guantanamo is on another planet, a permanent United States penal colony floating in another world.
The above described scenario illustrates three of the most worrisome aspects of the United States’ war on terrorism: the indefinite detentions at the United States Naval Base, Guantanamo Bay, Cuba; the lack of any judicial review of those detentions; and the plan to employ military commissions to try some of those detained. As of November 2002, approximately 625 persons from 44 countries have been jailed at Guantanamo, many of them since January 2002.10 Their names are kept secret and the government has refused to permit visits by attorneys or family. No charges have been filed against them. Although many were captured on the battlefield,11 they are not being treated with the rights the Geneva Conventions accords to prisoners of war (POWs) and may be held indefinitely. The United States has vigorously opposed court review of these detentions.12 The serious threat the detentions raise is not just to the rights of those at Guantanamo, but to all of us. They raise the specter of executive detentions not subject to review by any court and without any basis in law. It is fundamental to freedom that detentions must be pursuant to law and that courts are to act as a check on unbridled executive power. These rights are now in serious jeopardy.
Attorney General Ashcroft has stated: “Foreign terrorists who engage in war crimes against the United States do not deserve constitutional rights.”13 Apparently, the Attorney General knows suspected terrorists are guilty before they are tried. Their guilt can then be confirmed by trials in front of military commissions that are more likely to convict because they do not fully protect constitutional rights. It’s reminiscent of the famous trial scene in Alice in Wonderland, but these trials are not a fantasy:
“No, no!” said the Queen. “Sentence first—verdict afterwards.”
“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!”
It is fundamental to freedom that those accused of crimes are tried before regularly constituted courts that are impartial, guarantee a defendant’s rights, are public and allow appeal to a higher court. Yet, some of those detained at Guantanamo will apparently be tried before military commissions that will not fully guarantee these rights. 14 These special courts are ad hoc commissions in which the President designates the defendants for trial, the Secretary of Defense chooses judges (who are the jury as well), the trials can be closed, and no court appeal is permitted even from a sentence of death. The employment of military courts could be widely expanded beyond those imprisoned at Guantanamo. The administration has already spoken of employing them against alleged terrorists in the United States.15 The last time military commissions were employed was almost sixty years ago, and those precedents have been widely criticized. [add criticism of military commissions] Until recently, the United States itself was highly critical of countries such as Peru that employed military commissions. Trial before such commissions represents not justice, but a threat to liberty.
Many in the United States do not seem concerned by this scenario.16 This is, in part, because the detentions are occurring outside of the United States with little or no press access to inform us of what is transpiring. Many people are unconcerned because it is not happening to them, but to non-citizen Muslims picked up from around the world. Many also believe those on Guantanamo must be guilty of something. In addition, in an environment in which we are all frightened of the next act of terrorism, many are willing to give the government more leeway, believing that its actions will make us safer.
This turning a blind eye to lawless action flowing from the government is dangerous, and not only for those imprisoned in Guantanamo. The government also has applied its detention policies to citizens, holding without charges, Jose Padilla, a suspected terrorist, and Yaser Hamdi, a suspected enemy combatant, in military brigs in the United States and is refusing to allow them access to attorneys or family.17 Under the government’s rationale, it can treat citizens it imprisons in the United States as it treats non-citizens at Guantanamo. It need simply label them as enemy combatants, whether citizens or not as it has done with Hamdi and Padilla. That designation, according to the government, allows them to be held with the same lack of legal rights as are non-citizens on Guantanamo. The only difference is that Hamdi and Padilla, unlike the non-citizens detained at Guantanamo, can obtain minimal court review of their designation as enemy combatants.18 This minimal review may not be the result of their citizenship, but rather their presence in the United States. Were Hamdi and Padilla held in Guantanamo, they might not even be permitted that limited court review.
Who Was Captured and Taken to Guantanamo?
On October 7, 2001, the United States and its allies began their war against the Taliban rulers of Afghanistan and al Qaeda members who were present in that country. The United States allied itself with the Northern Alliance forces that had been opposing the Taliban for many years. The war was over relatively quickly. On December 17, the last al Qaeda stronghold fell, and on December 21, the interim government of Hamid Karazi was sworn in. During that brief war, thousands of Taliban and al Qaeda fighters were captured, primarily by the Northern Alliance. Many of these were detained in Mazar-e Sharif prison and in Shibarghan prison under appalling conditions.19 C.I.A. and other United States officials carried out extensive interrogations of the prisoners. The Northern Alliance later freed some of these prisoners; others remain in prison in Afghanistan.20 Six hundred were killed in a major prison riot.21
On January 11, 2002, the United States military began transporting some of these prisoners captured in Afghanistan to Camp X-Ray22 at the United States Naval Station in Guantanamo Bay, Cuba. There were allegations of ill treatment of some prisoners both in transit and at Guantanamo, including reports that they were shackled, hooded and sedated during the 25-hour flight from Afghanistan and that their beards and heads were forcibly shaved. Upon arrival at Guantanamo they were housed in makeshift, small (8 feet by 8 feet), open air, wire cages that failed to protect against the elements.23 The cages were surrounded with fences topped by razor barbed wire, and the compound was encircled with watchtowers. In this early period, the detainees remained shackled when using the portable toilets or showers and temperatures frequently went above 95 degrees Fahrenheit. Halogen floodlights blazed all night so that they could be continuously monitored. The pictures released in January 2002 of the prisoners at Guantanamo show them kneeling in blazing Cuban sun, wearing blackened goggles, masks, ear covers and shackles. These photos caused a public outcry, as did the conditions under which they were being held.
I have had some personal experience with the living conditions in Guantanamo. In the early 1990’s, I represented Haitian refugees that were held there and have visited the base a number of times. Its land is bleak and hardscrabble where little grows except cacti; the heat is intense, and scorpions, mosquitoes, and banana rats are abundant.24
Over the next months, more prisoners were taken to Guantanamo. It is assumed that most of these were associated with the Taliban or al Qaeda and taken from Afghanistan or Pakistan.25 However, prisoners from other places have been imprisoned in Guantanamo as well, including five Algerians and a Yemeni from Bosnia.26 This later group was obviously not composed of combatants captured in the theatre of war. They were suspected of planning attacks on the U.S. embassy in Sarajevo. These detentions indicate that Guantanamo will be used for more then just those picked up in Afghanistan and Pakistan, but will be used to detain others that United States officials suspect are dangerous, might have information, or are allegedly involved in terrorism or with al Qaeda. At the end of 2002, while preparing for war with Iraq, United States officials suggested that some of those captured in that war would also be sent to Guantanamo.27
In late April, the United States transferred the prisoners to Camp Delta, a new longer-term prison camp that is designed to house as many as 2000 prisoners.28 The cells are small (8 feet by x 6 feet, 8 inches), but they have running water and apparently better protect the prisoners from sun and rain. Judging form the few photographs that have been released, the prison looks like rows of one-story, self-storage facilities. Little is known about this new prison, because reporters are not allowed into it; in fact, the press cannot now see the building as a green screen has been erected to block any view. However, in September 2002 it was reported that there was trouble between the guards and the inmates concerning the treatment of the prisoners and claims by detainees of their innocence. This resulted in solitary confinement for eighty of the prisoners and suicide attempts by others.29
What We Know About the Detainees
Not much is known about those imprisoned in the camp; certainly, nothing is known publicly as to whether particular detainees have allegedly committed crimes, are affiliated with the Taliban or al Qaeda, or are there by mistake. No attorneys, family or press are allowed to visit, but the International Committee of the Red Cross has a regular presence in Guantanamo and presumably has visited the prison and the detainees. As is standard with the Red Cross, it has said nothing regarding particular detainees.
The administration has made general statements regarding the alleged character of those detained. At the time of the transfers to Guantanamo, Secretary of Defense Donald Rumsfeld called the detainees “hardened criminals willing to kill themselves and others for their cause.” 30 He emphasized their dangerousness: “Every time people have messed with these folks, they’ve gotten in trouble. And they are very well trained. They’re willing to give up their lives, in many instances.”31 The United States military officials in charge of the prison said they were told to expect “the worst of the worst.” 32 “These are the worst of a very bad lot,” said Vice-President Cheney. “They are very dangerous.”33 Officials of the administration have made these statements without allowing any of the detainees access to attorneys and without bringing anyone before any kind of trial proceeding that could determine their status or their involvement in terrorism.
There may well be a number of terrorists among those imprisoned. However, the Bush Administration has refused to bring any of them before commissions that can determine whether some are terrorists, POWs, or innocent. The October 2002 release of three Afghani men, after almost a year at Guantanamo, suggests that the Administration’s sweeping rhetoric has been overblown. It should not have taken eleven months to determine that these men were not terrorists. One of the men released said that he was 105 years old. David Rhode, a New York Times reporter described him: “Babbling at times like a child, the partially deaf shriveled old man was unable to answer the simplest questions.”34 When asked if he was angry with American soldiers he said that he did not mind, because they “took my old clothes and gave me new clothes.” A second Afghani man, released at that time, said that he was 90 years old and was described as a “wizened old man with a cane” who had been arrested in a raid on his village. 35
A third younger man said that he had been cut off from the outside world for eleven months and had only received a letter from his family three days before he was to leave Guantanamo. He said he was kept in his cell 24 hours a day with only two 15-minute breaks for exercise a week. This third man admitted that he had fought with the Taliban, but said that he had been forced to do so. After he surrendered, soldiers of the warlord Abdul Rashid Dostum falsely told the United States that he and nine others were officials of the Taliban. His release appears to confirm the essential elements of his story. These men are hardly the “worst of the worst.”
Here were men, particularly the two aged detainees, who should have never been taken to Guantanamo and yet they were imprisoned. Here were men, who had there been a hearing before some form of a tribunal would have been freed long ago. It seems likely that there are more such men suffering at Guantanamo.
Information about a few of the other detainees is also known from families of the detainees and from delegations of officials from various countries. Some of the prisoners have been able to send short, censored letters through the Red Cross to their families. 36 These letters appear to be few and far between. A few families that received letters have contacted lawyers, and lawsuits have been filed from which some information is known about the detainees.
For example, according to his family, Mamdouh Habib, an Australian citizen, traveled to Pakistan in August 2001 to look for work and a school for his two teenage sons. Pakistani officials, on October 5, 2001, just before he was about to return to Australia and two days prior to the war, detained him. He was transported to Egypt where Egyptian authorities detained him. Eventually he was turned over to the United States and taken to Guantanamo. Obviously, he was nowhere near the fighting in Afghanistan. Similar stories are told about others detained in Guantanamo. A delegation from Pakistan that visited its citizens on Guantanamo for purposes of interrogation, has also questioned the continued detention of many of the Pakistanis. The delegation concluded that almost all of the 58 Pakistanis detained were low-level foot soldiers and had no link to al Qaeda.37 Some of these may have been imprisoned because of United States reward money given to the members of the Northern Alliance in exchange for alleged members of al Qaeda.38 Because of its visit, Pakistan requested the release nearly all of the Pakistani prisoners. 39
These stories of the innocent, of some detainees not involved in any fighting, of detainees that were no more then lowly foot soldiers, demonstrates the importance of a legal process for determining the status of those imprisoned on Guantanamo. It demonstrates the wisdom of those that insist that the rule of law is a necessary component of treating people fairly.
Why the Government Selected Guantanamo
The United States Naval base at Guantanamo Bay occupies approximately thirty-one square miles of land in southeast Cuba, an area larger then Manhattan. The U.S. has occupied Guantanamo Bay since 1903, shortly after the end of the Spanish-American war, under a treaty that gives it “complete jurisdiction and control” over the area. The lease continues in perpetuity unless mutually abrogated.40 Despite claims of national sovereignty made by Cuba over the area, the United States insists its occupation is legal and will remain in perpetuity until the United States decides otherwise.
The naval base is a self-sufficient and essentially permanent city with approximately 7,000 military and civilian residents–an American enclave with all the residential, commercial, and recreational trappings of a small U.S. city. It has its own schools, generates its own power, provides its own internal transportation, supplies its own water, and has an airfield. Crimes committed by both civilians and foreign nationals living on the base are brought before courts in the mainland United States. Cuba has no authority over the base in any respect. No Cuban court has any authority over the base. The United States naval website accurately describes Guantanamo Bay as “a Naval reservation, which for all practical purposes is American territory.”41 This is unlike any other base the United States has in a foreign country. The United States is essentially sovereign over Guantanamo.
From the government’s point of view, imprisoning the detainees at Guantanamo has a number of advantages. It is close enough to the United States to be conveniently accessible to military and intelligence agencies. Yet, it is only accessible with the permission of the Untied States, which prevents news reporters from scrutinizing the treatment of the detainees except under the eyes of the government. No reporter has been in the prison, and no reporter has interviewed any prisoner in Guantanamo. A negative story about the prison could easily result in the barring of any access to the military base. The base also offers security advantages, which reflect a legitimate concern. To the extent that outsiders might attempt to either attack the base or free prisoners that is almost impossible. It is far more secure, for example, then bases in Saudi Arabia or the Philippines.
A major advantage of jailing the detainees at Guantanamo is the government’s view that no court in the United States, or in the world for that matter, has jurisdiction to review the legality of the detentions or the government’s treatment of the prisoners. Additionally, the Bush Administration’s position is that non-citizens held outside the United States– and it considers Guantanamo outside the United States– have no constitutional rights.42 These arguments stem from cases decided during World War II43 and from court decisions concerning Haitian refugees interned at Guantanamo during the early 1990’s.
In the Haitian cases, the government asserted that no court in the world could review its treatment of the refugees. The cases in United States federal courts were divided on this question. To the extent those courts concluded that the naval base at Guantanamo was more akin to United States sovereign territory, they permitted review and determined that the refugees had some constitutional protection.44 However, to the extent courts deemed Guantanamo more akin to a foreign country, review was denied and the refugees were found to have no constitutional rights.45 It should make no difference that those cases concerned refugees, and the current situation concerns alleged terrorists and combatants; the issue is still whether U.S. courts can hear cases concerning the rights of persons in U.S. custody at Guantanamo.
Considering the status of Guantanamo, which is for all intents and purposes United States’ controlled territory, it is difficult to accept an argument that what occurs there, should be exempt from United States court review. It is also difficult to accept the view that the United States can imprison people anywhere in the world and be free from judicial oversight. Yet, so far, as is discussed below, the courts have accepted the United States claim.
The Detainees’ Legal Status and the Right to Competent Commissions
The situation of the prisoners at Guantanamo needs to be examined under two bodies of international law. First is the law that applies in times of armed conflict, which is called humanitarian law. The primary source for that law is The Geneva Conventions of 1949, a treaty ratified by the United States and most of the countries of the world. The Geneva Conventions concern, among other topics, the treatment of people captured on the battlefield or in the theatre of war. This body of law is applicable initially to those persons captured in the war with Afghanistan. This would include primarily the Talliban soldiers and militia fighting alongside them.46
As to detainees from outside the theatre of war, such as those arrested in Bosnia-Herzegovina, the Geneva Conventions do not apply. International human rights law determines their rights. They must be formally charged, given access to counsel, and tried. This would include alleged international terrorists. The key principle is that some body of law applies to every person detained and gives him or her a legal status and certain rights under international law. The international prohibition on arbitrary detention prohibits detentions in violation of existing law. No one can be treated in whatever manner a country decides. That is not the rule of law, but rule by fiat.
The Geneva Conventions apply whenever there is an armed conflict between two or more parties to the Conventions, even if one of the parties, here the Taliban, was not diplomatically recognized by the United States. The Conventions establish that captured combatants, as prisoners of war (POWs), have the “combatant’s privilege.” That privilege gives a soldier the right to shoot at soldiers of the enemy forces; without that privilege, a soldier could be tried for murder. POWs can be interned, but not imprisoned, unless it is demonstrated, on an individual basis, that there are security risks. They have significant rights to humane treatment as well as communication by letter with their families. POWs can still be questioned and they can be prosecuted for war crimes, but they retain their POW status. Importantly, POWs cannot be tried by military commissions for war crimes; they must be tried by the same courts as American soldiers would be tried. That would mean trial by courts-martial, which grant substantially more rights then military commissions.
Although resistant at first, the Bush Administration finally grudgingly acknowledged that the Conventions applied to those captured on the battlefield in Afghanistan, but with caveats that eviscerated their application. The White House announced that although the U.S. would apply the Geneva Conventions to soldiers that it decided were from the Taliban, it would not extend the protections to prisoners it believed were members of al Qaeda.47 However, in reality, the Bush Administration would not apply the terms of the Conventions to any of the Guantanamo prisoners. Specifically, the U.S. refused to apply Article 4 of the Third Geneva Convention that requires that all regular members of a government’s army be granted POW status; and that members of a militia fighting alongside those armed forces would receive such status. This might well include members of al Qaeda captured on the battlefield. So by refusing to apply this key provision, the Bush Administration was in fact refusing to apply the Geneva Conventions in a meaningful way.
The United States decision that neither the Talliban fighters nor the militia fighting alongside them were POWs was made without following the procedures specified in Article 5 of the Third Geneva Convention. That article requires the convening of a “competent tribunal” to determine the status of each individual captured “should any doubt arise” as to his status. (Such “competent tribunals” are not the military commissions that the United States is establishing to try war crimes.) The United States never held such “competent commissions,” but made a blanket determination that no one captured on the battlefield was a POW. The Convention also requires that all such prisoners be treated as POWs pending such hearings. The United States has repeatedly refused the entreaties of the international community to treat all the detainees under the Article 4 and 5 procedures established under the Geneva Conventions.48
Nor was there any reason for the United States not to employ such commissions. Prior to the war the United States military had adopted regulations for these commissions, which are staffed entirely by its military personnel. Such commissions were used in Vietnam and over a thousand such tribunal hearing were held during the 1991 war against Iraq. Had such commissions been held, it could have been determined that some of those imprisoned on Guantanamo were wrongly detained. As to others, it would have been determined that they were POWs with rights and protections afforded them under the Geneva Conventions.
The United States has tried to justify its position legally, but in a manner that is inconsistent with international law. It has labeled those detained as enemy combatants and claims that the military’s authority to capture and detain enemy combatants is well settled. But, enemy combatants are a general category, not a status under the Geneva Conventions. Under the Geneva Conventions, enemy combatants are either prisoners of war with all of the rights that attach to that status or they are not, in which case the cone under the Fourth Geneva Convention.
The Fourth Convention treats such non-POWs as civilians, but if the person is suspected of activities hostile to the state, he can be detained and denied certain rights, such as the right to communicate (write letters). This means that members of al Qaeda and any other person captured in the theatre of war and found not to be POWs can still be detained. However, these determinations must be made individually. In addition, anyone captured, POW or otherwise, can still be criminally prosecuted.
By deciding unilaterally that it would not apply the Geneva Conventions, at all, to any non-Taliban, even those captured in the theatre or war, the U.S. has violated international humanitarian law. Its position raises serious questions as to the legal authority under which the Guantanamo detainees are being held. If, as the United States claims, they have no status under the Geneva Conventions, then the rules of international human rights law apply. However, those rules require that they be arrested, charged, represented by attorneys and tried. Obviously this is not occurring. For, as explained above, U.S. domestic criminal law is not being applied. The United States is holding these people outside both international and domestic law.
The Geneva Conventions were created to provide, among other things, humane conditions and limits on the duration of confinement. POWs, which is what many of those in Guantanamo appear to be, may only be detained until the “cessation of active hostilities.” That circumstance has occurred with regard to the war in Afghanistan. As to non-POWs, they may be held until the “general close of military operations,” which arguably has also occurred in Afghanistan. Both POWs and others may be held for substantially longer periods if it is for serving a sentence, but this is not relevant to the Guantanamo detainees as far as is publicly known.
The U.S. argues that it was fighting not just a war against Afghanistan but also an international war against al Qaeda that may not end for many years.49 This argument does not address the rights of former Taliban combatants now in custody and there is a serious question as to whether the efforts to disable and destroy al Qaeda constitute a war under international law. A war, other then a civil war, is between states. It is not defined as between a state and a terrorist organization. That is an international law enforcement effort, akin to tracking down drug dealers, and is subject to international human rights law that requires charges and trials.
Detainees at Guantanamo who come from outside the theatre of the Afghanistan war are examples of the legal twilight of the “war” on al Qaeda. There is very little information available regarding these people, except six who were arrested in Bosnia-Herzegovina and taken to Guantanamo. Five Algerians and a Yemeni were taken from a prison in Sarajevo in January 2002, despite a local court order releasing them for lack of evidence. The United States claims, “their activity posed a credible security threat to U.S. personnel and facilities and demonstrated involvement in international terrorism.”50 The Geneva Conventions do not apply to these six men, but their rights are protected under international human rights law.
The United States is trying to avoid treating these and others as human rights law requires by calling them all “battlefield detainees.”51 This is obviously incorrect. The United States is or was fighting a war in one part of the world, Afghanistan, but that does not permit it to capture people anywhere in the world and label them combatants without showing they were involved in the armed conflict. These and others have been captured because of their alleged role in international terrorism. They are suspects. Their capture should be treated as a matter of criminal law and they should be charged, permitted to have counsel, and tried. Otherwise, they should be released. To do otherwise is to hold them arbitrarily in violation of international human rights law.
There is one exception under which the United States could hold alleged international terrorists including members of al Qaeda for some period without charges and trial. Article 4 of the International Covenant on Civil and Political Rights permits such detentions in a very narrow class of cases: during a public state of declared emergency threatening the life of the country. To avail itself of this exception the United States must notify, through the U.N. Secretary General, the other countries that are parties to the treaty. The United States has neither declared such an emergency nor has it notified the Secretary General.
The administration has yet to announce charges or trials for any of the detainees, Taliban or otherwise, and has stated that they will be held indefinitely.52 According to Secretary of Defense Rumsfeld, this means until the war against terrorism is over, which could be many years, that is, until “we feel that there are not effective global terrorist networks functioning in the world….”53 Although military commissions may eventually try some of those at Guantanamo, Rumsfeld has said that even if such commissions acquitted certain captives, the government planned to keep some at the base. In other words, the Administration considers itself entitled to capture, arrest, and detain people from anywhere in the world, interrogate them, refuse them access to lawyers and family, not charge them or bring them before any courts, not release them even if tried and acquitted, and imprison them indefinitely year after year.
There have been three U.S. court challenges to the detentions at Guantanamo,54 one in the United Kingdom55 and one before the Inter-American Commission of the Organization of American States.56 As of January 2003, the request to the Commission by various human rights groups, was the most successful. While the Commission is not a court, its mission is to enforce the principal regional human rights treaty, the American Declaration of the Rights and Duties of Man, the provisions of which protect the right to life, fair trial, due process and freedom from arbitrary detention. In its decision of March 13, 2002, the Commission urged the United States to “take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by a competent tribunal.”57 The Commission explained that everyone that is captured by a state must have a legal status and that it is for a tribunal and not a government to determine that status. In strong language the Commission found that the
detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they might be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the state.58
Although the Commission has ruled that member states of the OAS are under an “international legal obligation” to comply with its decisions, the United States has refused to do so. The Commission reiterated its order mandating commissions in July 2002 and held a hearing on the failure of the United States to implement this ruling. The United States has still not complied, and there is no power in the Commission to compel compliance.
The challenge to the detentions filed in the courts of the United Kingdom was on behalf of one of the detainees, Ali Abbasi, a citizen of England. Although the Court could not order a remedy for the detentions because the Untied States government was not a party to the lawsuit, it described the detention situation in stark terms: “[I]n apparent contravention of fundamental principles recognized in both jurisdictions [U.S and U.K.] and by international law, Mr. Abbasi is at present arbitrarily detained in a `legal black hole.'”59 The Court was especially critical of the U.S. government’s claim that there was no court in the United States that could review the indefinite detentions in a territory over which the United States had exclusive control. It hoped that the appellate courts in the United States would find otherwise, which as of January 2003, they have not.
The two cases filed in federal court in Washington D.C. on behalf of Australian, English and Kuwaiti citizens detained in Guantanamo are the critical cases, for the United States government must adhere to any final court rulings. As of this writing, the federal court decisions have been favorable to the government, but the appeals, which may ultimately be heard by the Supreme Court, have not been completed. In ruling on these cases, the federal judge accepted the government’s argument that her court had no jurisdiction to hear the cases and therefore could rule on the legality of the detentions.
She found that American courts could not hear cases brought on behalf of aliens held by the Untied States outside the territory of the United States, thus determining that, despite the U.S. government’s “complete jurisdiction and control” of Guantanamo Bay, the Naval base was outside the U.S. courts’ authority.60 The cases are on appeal. Without any court review of the legality of the detentions, there is no check on the actions of the government. It can, and apparently is, acting above the law.
Trials by Military Commissions
On November 13, 2001, President Bush signed a military order establishing military commissions to try members of al Qaeda and suspected international terrorists.61 Under this order, non-citizens, whether from the United States or elsewhere, who are accused of membership in al Qaeda or of aiding international terrorism can be tried before one of these commissions at the discretion of the President. The Bush Administration has said that it will try some of those held on Guantanamo by these military commissions. As of December 2002, the Department of Defense was working on final preparations for the commissions.
Although military commissions were employed during and in the aftermath of World War II, there use was always restricted to defendants associated with the armed forces of a state who were alleged to have violated the laws of war. The military commissions established by the Bush Administration encompass defendants beyond this narrow category and are aimed at defendants who are not combatants on behalf of a state and who, therefore, cannot commit violations of the laws of war. Violations of the laws of war, in general, can only be committed by state actors. If a non-state actor, such as a member of al Qaeda or an alleged international terrorist murders people, it is a crime, but it is not a war crime. Such alleged criminals, terrorists or otherwise, should be tried by regular criminal courts of which the United States has abundance. To the extent the Bush Administration plans to try alleged international terrorists by military commissions, whether they are members of al Qaeda or not, it is proceeding contrary to law. No U.S. Supreme Court case and no rule of international law permit military commissions to try crimes that do not constitute war crimes.
A second major problem with the commissions is the procedures employed at the trials. The proposed commissions are not courts-martial, which provide far more protections for the accused, although less then those required in civilian trials.62 Courts-Martial require that arrests be made upon probable cause and mandate an investigation and hearing before a trial can occur. The accused can request a specific military counsel and can choose his civilian counsel. Hearsay evidence and involuntary confessions are not permitted. A unanimous verdict is required for offenses in which the death penalty is mandatory. Trials are public and there are two levels of appeal including an appeal to the U.S. Court of Appeals for the Armed Forces, which is composed of civilian judges. The defendant can request the Supreme Court of the United States to hear his appea1.63
Although the Bush Administration has said why it prefers military commissions rather then civil courts for trials of alleged enemy belligerents and alleged international terrorists, it has not fully explained why trial by courts-martial would not ally most of its concerns.64 Courts-martial, like commissions, do not require civilian jurors, judges or courts and can dispense justice relatively rapidly. Unlike military commissions, they are established courts and would not be subject to the criticism that they are ad hoc commissions set up as a means of obtaining convictions more easily.65
By contrast to even the limited rights of courts-martial, the military commissions alter or eliminate many of these rights. This remains so even after the Department of Defense issued a set of procedures, in March 2002, that modified some of the more egregious aspects of the commissions as set forth in the President’s order.66 The President still designates the suspects who are to be tried; there is no preliminary hearing or indictment. The Secretary of Defense appoints the judges, most likely military officers, who act as judges and jury deciding both questions of law and fact. Unlike federal judges who are appointed for life, these officers have little independence. Normal rules of evidence, which provide some assurance of reliability, do not apply. Hearsay and even evidence obtained from involuntary confessions is admissible.
(This is particularly frightening in light of the intimations from United States officials that torture of suspects may be an option.)67????
Defendants can be found guilty of a crime carrying a potential death penalty by a two-thirds vote of the judges, although unanimity is required to impose the death penalty. If a defendant can afford a civilian counsel (he is entitled to military counsel), that attorney must be determined to be eligible for access to classified information. The only appeal from a conviction is to the President or the Secretary of Defense, although that appeal goes first to a three-person military review panel that then gives a “recommendation” to the Secretary of Defense or the President. Thus, there is no review by a civilian court and the final decision remains in the hands of the President or Secretary of Defense.
Incredibly, the entire process, including the carrying out of the death penalty can be carried out in secret. Although the procedures state that the proceedings will be open unless the presiding officer determines otherwise, the circumstances under which trials can be closed are broad and open to abuse. Trials can be closed in the interests of “national security” and other similar reasons. The trials can be held anywhere the Secretary of Defense decides, presumably even on board an aircraft carrier. Access by the press is not guaranteed; the procedures state that the judge “may also allow attendance by the public and press.”68
These new commissions represent such a departure from fair and impartial courts that there was a broad outcry against their use both in the United States and Europe. Even conservative United States columnists such as William Satire were highly critical. This outcry was probably a factor in the government’s decision to have the so-called twentieth hijacker, Zacarias Moussaoui, tried in a regular federal court in the United States. It certainly contributed to the reasons for the order being modified in March 2002.
While military commissions were used during and immediately after World War II, their use since that time does not comply with important international treaties. The International Covenant on Civil and Political Rights as well as the American Declaration of the Rights and Duties of Man require that persons be tried before regularly constituted courts established in accordance with pre-existing laws. In addition, the Third Geneva Convention of 1949 requires that POWs be tried under the same procedures as United States soldiers for similar crimes. United States soldiers are tried by courts-martial or civilian courts and not by military commissions. This may be one important reason the United States is refusing to classify the Guantanamo detainees as POWs; if they were POWs, the government would not be free to use military commissions.
Surprisingly, some law professors have argued in favor of these commissions, saying that secrecy is necessary for security.69 The primary argument is that it might be necessary to disclose classified information in order to obtain convictions. But in fact, procedures for safely handling classified information in federal courts have been successfully used, as in the trial of those convicted in the 1993 bombing of the World Trade Center. The 1993 trials also demonstrate that trials of suspected terrorists do not require military commissions, but can safely be held in federal courts.
Trials before military commissions will not be trusted in either the Muslim world or in Europe, where previous terrorism trials have not required the total suspension of the most basic principles of justice. It would be much better to demonstrate to the world that the guilty have been apprehended and fairly convicted in front of impartial and regularly constituted courts.
With regard to the Guantanamo detainees, the Bush administration is openly disregarding a legal framework that is fundamental to not only to defendants’ rights, but the rights of all of us. Its assertion of the power to imprison people indefinitely, without charges and court review, is the very conduct the United States has forcefully condemned in other countries. The prohibition against executive detentions is the key to human liberty. It is no small matter, to see an administration ignore that prohibition.
have received a letter signed by over 400 law professors from all over the country, expressing their collective wisdom that the military commissions contemplated by the President’s Order are “legally deficient, unnecessary, and unwise.” More specifically, these hundreds of legal scholars point out that Article I of the Constitution provides that Congress, not the President, has the power to “define and punish …Offenses against the Law of Nations.” Absent specific Congressional authorization, they say, the Order “undermines the tradition of the Separation of Powers.”[move]In some way those sent to Guantanamo may be the lucky ones; as, far as we know, torture is not used during interrogations. Since September 11, dozens of prisoners have been sent to third countries including Egypt or Jordan. These people have been transported without going through normal extradition procedures in a process more akin to kidnapping. They are sent to Egypt and Jordan where the intelligence agencies are closely tied to the C.I.A. These agencies engage in interrogation tactics such as torture and threats to families that are illegal in the United States.70 [add recent torture in afghan and torture in US] [torture section]
1 Mintz, John. “Extended Detention in Cuba Mulled.” Washington Post. March 13, 2002.
3 Davies, Frank. “U.S. Readies Tribunals for Terrorism Trials.” Miami Herald. Dec. 26, 2002.
4 Goldin Greg. “New World Disorder, Assault on America II, Secret Military Tribunals and Other Mischief to Civil Liberties. ” LA Weekly. Nov. 30, 2001.
5 Id. Mischief to Civil Liberties. ” LA Weekly. Nov. 30, 2001.
6 Secretary of Defense Donald Rumsfeld. “DOD News Briefing on Military Commissions.” March 21, 2002; “Guantanamo Forever.” Miami Herald Dec. 3, 2002.
7 Id.; Walter, Douglas, “Ready for the 50-Year War.” Time Magazine. December 31, 2001.
8 Rasul v. Bush, 215 F.Supp. 55 (D.C.D.C. 2002).
10Rohde, David. “Threats and Responses: The Detainees, Afghans Freed from Guantanamo Speak of Heat
and Isolation.” The New York Times. Oct. 29, 2002.
11Seelye, Katherine Q. “A Nation Challenged: At Guantanamo.” The New York Times. April 3, 2002.
12 “Respondent’s Motion to Dismiss Petitioners First Amended Petition For Writ of Habeas Corpus” in Rasul v. Bush. http://campxray.net/03.18.02%20Gov’t%20response%20to%20Writ.PDF
13 Nightline. ABC television broadcast, Nov. 18, 2001, cited in Dr. Shareef, Reginald “Ashcroft on a Slippery Slope.” Roanoke.com/columsnists/shareeff4041.html (Nov. 19, 2001); Vice President Dick Cheney, defending the idea of military commissions for terrorists, said that terrorists “don’t deserve the same guarantees and safeguards” of the American judicial system. “Bush Officials Defend Military Trials in Terror Cases. ” CNN. Nov. 15, 2001. http://www.cnn.com/2001/LAW.
14 Davies, Frank. “U.S. Readies Tribunals for Terrorism Trials.” Miami Herald. Dec. 26, 2002.
15 Lewis, Neil. “Administration Plans Shifts on Plans for Tribunals.” The New York Times. Nov. 2, 2002
16 The Center for Constitutional Rights and I have received a great deal of hate mail because of our representation of the Guantanamo detainees. The content of this mail demonstrates that many people appear willing to set aside the constitution with regard to the detainees at Guantanamo. A couple of example of the scores of letters and e-mails make the point:
I believe that you are misguided. As a U.S. Citizen, I do not believe that there is any legal or moral necessity to give the rights granted by the U. S. Constitution to those detained at Camp X. The more these persons are questioned, the less future WTC-type incidents will occur. There are 6 billion persons outside our borders; do you wish to grant them our constitutional rights?
Stop coddling the murderers at Guantanamo and spend your time doing something worthwhile for society. They are entitled to exactly the same consideration they gave the workers at the World Trade Center and Pentagon. Why don’t you try doing pro bono work for the families of the victims rather than advocating the so-called “rights” of the barbarians who would end our way of life?
Some laws Professors from well-known law schools have defended both the military commission and the non-treatment of the detainees as POWs. Eg. Wedgwood, Ruth. “The Rules of War Can’t Protect Al Qaeda.” The New York Times. Dec. 31, 2001; “The Case for Military Tribunals,” The Wall Street Journal. Dec. 3, 2001.
17 Padilla v. Bush, 2002 U.S. Dist. LEXIS 23086 (S.D.N.Y. 2002); Hamdi v. Rumsfeld, No. 02-7338 (4h Cir. Decided Jan. 8, 2003).
18 The court in the Hamdi case required the government to file an affidavit setting forth some facts underlying the basis for his designation as an “enemy combatant.” Hamdi v. Rumsfeld, No. 02-7338 (4h Cir. Decided Jan. 8, 2003). In the Padilla case, the federal district court held that the government needed to support its designation of Padilla as an enemy combatant with “some evidence.” The court also allowed a consultation with his attorney, although as of this writing in January 2002, the government is rearguing that aspect of the decision. Padilla v. Bush, 2002 U.S. Dist. LEXIS 23086 (S.D.N.Y. 2002).
19 One news story described the prisons as “three dank and overcrowded cell blocks, with a stench of unwashed bodies and from which erupt monotonous pleas for help and mercy, that more resemble cattle sheds or ill-kept stables than a jail.” “258 Afghan Taliban Soldiers Released. “Reuters. Mar. 24, 2002, at http://wvvw.dawn.com/2002/03/24/topll.htm.
20 Gall, Carlotta, “The Missing: Families Try to Trace Thousands of Missing Taliban, Many Forced to Fight. ” The New York Times. Feb 21, 2002.
21 Glasser, Susan B. “Malnutrition, Disease Rampant at Prison for Taliban; Red Cross Begins Emergency Feeding.” The Washington Post. April 19, 2002.
22 The name accurately describes the camp; the guards can see everything a prisoner does.
23 See e.g., Press Release, Amnesty International, USA: “AI Calls on the USA to End Legal Limbo of Guantanamo Prisoners.”(Jan. 15, 2002 at http://web.amnesty.org/ai.nsf/Index/AMR510092002.
24 As I wrote after one of my trips to Guantanamo in 1991:
The conditions, under which they are living, if you can call it that, are out of Dante’s inferno—the ninth circle of Hell. For 14 months, they have used portable toilets that are rarely cleaned, that are filled with feces and urine. The camp is bleak—no grass, hardscrabble ground and temporary wooden barracks on concrete slabs. Within those “homes” 15 to 20 Haitians are huddled with only sheets hanging from the rafters. Rain, vermin and rats are other occupants. Ratner, Michael. “How We Closed the Guantanamo HIV Camp: The Intersection of Politics and Litigation,” 11 Harv. Hum. L. J.187, 201n. 56 (1998).
25 Initially most of the Guantanamo detainees were captured in Afghanistan, but by late 2002 the Department of Defense was unwilling to say from where additional captives were captured as the following dialog demonstrates: Q. “Did they come from Afghanistan?” Victoria Clarke, Defense Department spokesperson: “Not saying.” Clarke, Victoria, “Department of Defense Briefing.” Oct. 28, 2002 2 Ginger, Viola. “Lawyers Contest Algerians Handover.” Chicago Tribune. April 11, 2002
27 rumsfeld statement
28 Brown and Root Services, a division of the oil services company Halliburton, which was formerly headed by Vice President Cheney, is constructing the new prison. The contract may amount to 300 million dollars. Aldinger, Charles. “Halliburton to Build Cells at Guantanamo Base.” Reuters. July 27, 2002.
29 Wallace, Richard. “Camp Delta Breakdown.” Mirror, Sept. 17, 2002.
30 Seelye, Q. Katherine. “U.S. May Move Some Detainees to Domestic Military Bases.” The New York Times. Jan. 4, 2002.
31 George Edmonson, “Gitmo” Gets A Makeover As POW Camp, COX WASHINGTON BUREAU, Jan. 8, 2002, at http://www.coxnews.com/washingtonbureau/stafFedmonson/010802TER-GUANTANAMO.html.
33 Rumsfeld: Afghan Detainees at Gitmo Bay Will Not Be Granted POW Status, Fox NEWS, Jan. 28, 2002, at http://www.foxnews.com/story/0,2933,44084,00.html.
34 David Rhode, Afghans Freed From Guantanamo Speak of Heat and Isolation, N.Y. TIMES, Oct. 29, 2002, at A18.
36 Article 71 of the Third Geneva Convention states that POWs are permitted to send not less then two letters and four cards monthly; Article 72 of that Convention also allows them to receive individual and collective relief packages containing foodstuffs, clothing, articles of a religious nature and other similar items.
37 David Rhode, Afghans Freed From Guantanamo Speak of Heat and Isolation, N.Y. TIMES, Oct. 29, 2002, at A18.
40 For a short history of the lease, see Ratner, Michael “How We Closed the Guantanamo REV Camp: the Intersection of Politics and Litigation.” 11 HARV. HUM. RTS. L. J. 187, 191 (Spring 1998).
41 The History of Guantanamo Bay, Ch. 3 at http://www.nsgtmo.navy.mil/gazette/History 98-64/hischp3.htm
42 Ratner, Michael “How We Closed the Guantanamo HIV Camp: the Intersection of Politics and Litigation.” 11 HARV. HUM. RTS. L. J. 187, 192 n.7 (Spring 1998).
43 Johnson v. Eisentrager, 339 U.S. 763 (1950).
44 Haitian Ctr. Council v. McNary, 969 F.2d 1326 (2d Cir. 1992).
45 Haitian Refugee Ctr. v. Baker, 953 F.2d 1498 (11th Cir. 1992).
46 For a detailed look at the law, see Human Rights Watch. “Press Backgrounder, Background Paper on Geneva Conventions and Persons Held by U.S. Forces.” ian 29, 2002 at http://www.hrw.org/backgrounder/usa/pow-bck.htm.
47 Press Release, White House, Fact Sheet Status of Detainees at Guantanamo (Feb. 7, 2002), at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.
48 See, e.g., on February 8, 2002, the day after announcement of the United States’ position, Darcy Christen, a spokesperson for the ICRC, said of the detainees: “They were captured in combat [and] we consider them prisoners of war.” Richard Waddington, Guantanamo Inmates Are POWs Despite Bush View – ICRC, REUTERS, Feb. 9, 2002.
49 Department of Defense Briefing, Federal News Service June 21, 2002 Friday Copyright 2002
Federal News Service, Inc. Federal News Service June 21, 2002 Friday
http://www.lexis.com/research/retrieve/frames? m=7101ff36773773b6d426e977d35cc6e2&csvc=bl&c form=bool& fmtstr=XCITE&docnum=l& startdoc=l&wchp=dGLbVtb-1SIbz& md5=453809fe3aa226f895009cf13742a709
50 Bosnia Suspects Headed for Cuba, BBC, Jan. 18, 2002, at
51 The Christian Science Monitor, January 17, 2002 Copyright 2002 The Christian Science Publishing
Society The Christian Science Monitor January 17, 2002, : Fate of ‘detainees’ hangs on US wording
52 See e.g., Richard Sisk, Airport Gun Battle Firefight Erupts As Prisoners Are Flown To Cuba, N.Y.
DAILY NEWS, Jan. 11, 2002, at 27.
53 Katherine Q. Seelye, Rumsfeld Backs Plan to Hold Captives Even if Acquitted, N.Y. TIMES, Mar. 20, 2002.
54 Two cases were filed in federal court in Washington D.C. and consolidated for the argument and the decision: Rasul v. Bush and Al Odah v. United States, 215 F.Supp2d 55 (D.C.D.C. 2002). A third case, Coalition of Clergy v. Bush 310 F.3d 1153 (9th Cir. 2002) was filed in California.
55 The Queen on the application of Abbasi & Anor. v. Secretary of State for Foreign and Commonwealth Aairs, Case No. c/2002/0617A:0617B (Dec. 6, 2002).
56 Request By the Center for Constitutional Rights et al. for Prcautionary Measures Under Article 25 of the Commission regulations filed Feb. 25, 2002.
57 Decision of the Inter-American Commission on Human Rights of the Organization of American States. Detainees in Guantanamo Bay, Cuba (March 13 2002).
59 The Queen on the application of Abbasi & Anor. v. Secretary of State for Foreign and Commonwealth Affairs,  EWCA Civ. 1598
60 Rasul v. Bush & Odah v. United States of America, 215 F.Supp.2d 55 (D.D.C. 2002).
61 Press Release, White House, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism (Nov. 13, 2001), at http://www.whitehouse.govinews/releases/2001/11/20011113-27.html; The order can also be found in the Federal Register at 66 Fed Reg.57831 (2001).
62 Federal defendants tried in civilian courts are entitled to indictment by a grand jury, extensive discovery, trial by jury and a judge appointed for life.
63 Uniform Code of Military Justice, 10 U.S.C.801 et seq.
64 Alberto R. Gonzales, Martial Justice, Full and Fair 1VYT Nov 30 2001
65 Courts- Marital, like Military Commissions, can only try individuals who are affiliated with an armed forces. Neither is appropriate to try alleged terrorists without such affiliation. Such persons should be tried under a country’s criminal laws.
66 Department of Defense, Military Commission Order No. 1 (March 21, 2002)
67 Walter Pincus, Silence of 4 Terror Probe Suspects Poses Dilemma, WASH. POST, Oct. 21, 2001, at A6.
68 Deaprtment of Devense, Military Commission Order No. 1 (march 21, 2002)
69 See, e.g. Remarks of Yale Professor Ruth Wedgewood, at
70 Rajiv Chandrasekaran & Peter Finn, Suspects Send to Third Countries, WASH. POST, March 10,2002, at www.msnbc.com/news722264.asp.