Guantanamo Detainees Await Justice
by Jumana Musa
Since January 2002, the Bush Administration has held hundreds of men from over 40 countries at the US Naval Base at Guantanamo Bay, Cuba for detention and interrogation. Most were captured during the 2001 war in Afghanistan and designated by the US as enemy combatants. For two and a half years, none of them have had their detention reviewed as required by international law. A recent Supreme Court decision ruled that detainees in Guantanamo Bay do have the right to challenge their detention in US federal court, but it is not clear that they have been informed of this decision.
The Geneva Conventions provide that anyone captured during war
should come before a competent tribunal to determine whether they are prisoners
of war or were merely civilians swept up in the heat of battle. The Bush administration
claimed that the men were not prisoners of war so international law did
not apply. They also claimed that because Guantanamo Bay was not US territory,
US law did not apply. These men were left in legal limbo with no legal rights
or protections whatsoever. The administration essentially claimed that anyone
held at Guantanamo Bay was in a rights-free zone.
The Supreme Court ruling forced the US government to begin to
provide some legal process to the detainees in Guantanamo. The US government
set up Combatant Status Review Tribunals (CSRTs), in which military officials
review cases of individuals held in military custody to determine if they areenemy
combatants. The detainee has no right to representation and no right against
self-incrimination. This is widely viewed as an attempt by the US government
to show that some review of the detainees has occurred in order to address the
criticism that these men were being held illegally without even a perfunctory
review of their status.
Military commissions are a separate process that try
detainees charged with being members of Al Qaeda or harboring members of Al
Qaeda. These commissions have been condemned by legal experts around the world
for ignoring more than 50 years of development in US federal law, military law
and international law, instead being modeled after WWII tribunals. They provide
almost none of the traditional protections found in US federal or military courts,
including a ban on admitting evidence obtained by torture. The rules have been
made up from scratch and continue being made up as the process proceeds, causing
confusion and barring any appearance of due process or adherence to international
fair trial standards.
In August 2004, three years after military commissions had been
created by a Bush administration military order, pre-trial hearings began for
the first four detainees charged under this ad hoc system of law.
As a legal observer for Amnesty International, I spent a week in late August
observing the proceedings. The issues inherent in making up a new legal system
on the fly were even more problematic in practice. Experienced prosecution and
defense attorneys fumbled their way through the process, trying to determine
what laws governed the process, what standards should be applied and how to
proceed. Add to that an abysmal job by government translators (three of the
four charged are native speakers of Arabic), and the process simply fell apart.
After observing a week of tribunals, ACLU Executive Director Anthony Romero
called the whole set up so fundamentally flawed that it cannot be fixed.
Even though the commissions have the power to impose the death
penalty, there is no independent review of their decisions. An acquittal by
the military commission does not mean that a detainee is free to go he
can continue to be held in Guantanamo if he is otherwise determined to be an
enemy combatant by the CSRTs. Since the US attacked Afghanistan
and started transferring men to Guantanamo, of the approximately 750 who have
been held there, approximately 190 have been released, including two children
who were 13 years old when taken prisoner. Of those released only a few have
been taken into custody upon return to their home countries; the vast majority
have not been charged with any crime. Most report they had been tortured and
abused while in US custody, and continue to experience post-traumatic stress
and physical ailments.
For more information or to take action, see recent reports by
Amnesty International www.aiusa.org.
Jumana, a native Syracusan who volunteered with SPC during high school, is a lawyer and staff member of Amnesty International.