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 are“enemy 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

Jumana, a native Syracusan who volunteered with SPC during high school, is a lawyer and staff member of Amnesty International.