Guilty by detention
Two years on, the US's notorious detention centre at Guantanamo Bay continues to raise controversy, reports Nyier Abdou
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Joe and Fong Yee sit behind a picture of their son, Army Captain James Yee, at a news conference in Chinatown, New York, Monday, 2 February 2004. The family offered support for their son, who faces various charges after his work counselling terrorism suspects at the Navy base in Guantanamo Bay in Cuba
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The hastily constructed wire-mesh "cages" that greeted the first planeload of foreign prisoners to the US Naval base in Guantanamo Bay, Cuba, on 11 January 2002 are no more. Camp X-Ray, as it was known then, was a crude affair and human rights activists and humanitarian watchdogs were vocal in their objections to the treatment of the orange- jumpsuited, blindfolded, gagged and shackled prisoners detained during the war in Afghanistan that were pictured arriving that day.
Much has changed in the world since the US began shifting Taliban and Al-Qa'eda suspects to its high-security detention facility, perched improbably on the southeastern tip of Cuba. The US has aggressively pursued its "war on terrorism", which has been stretched to take in assassinations in Yemen, abductions in Gambia and the US-led war in Iraq. But in Guantanamo Bay, not much has changed at all, save the upgrade of the detention facility from the temporary Camp X- Ray to the more permanent "Camp Delta".
Only a handful of detainees have been released from Camp Delta, alleged by US Defense Secretary Donald Rumsfeld to contain the worst of the worst of the world's international terrorist network -- what US President George W Bush underwhelmingly categorised as "bad people". Some 660 prisoners from over 40 countries are still being held incommunicado, their detention shrouded in secrecy. With the exception of Australian detainee David Hicks and Yemeni national Salim Ahmed Hamdan, both of whom are among the six Guantanamo detainees slated for the first US military commissions, none has yet seen a lawyer. None has been charged, or been given any indication of when they will be charged. More than 30 have attempted suicide.
Two years ago, international legal experts disturbed by the US's blanket declaration of all Guantanamo suspects as "illegal combatants" thumped on their copies of the Geneva Conventions, demanding habeas corpus for the detainees. But the din raised by human rights defenders has fallen on deaf ears in Washington, where the Pentagon vehemently denies any breach of international law. In a Financial Times comment earlier this month, US State Department Lawyer William Taft argued that foreigners detained in the US-declared "war on terrorism" are in fact not entitled to due process. The Geneva Conventions, which embody the so-called laws of war, do not require a detaining country to charge an enemy combatant with a crime. Without such charges, Taft suggests that the US does not have to provide legal counsel or allow prisoners to challenge their detention in court.
Regarding Taft's contention that Guantanamo is consistent with international law, Robert Freer, a researcher at the London-based human rights watchdog Amnesty International, is unequivocal: "He is wrong." Freer stressed to Al-Ahram Weekly that a "fundamental principle" of international law is that detainees "be allowed to challenge the lawfulness of their detention".
"What we're talking about here is arbitrary detention," says Mark Ellis, executive director of the London-based International Bar Association (IBA) and a US attorney. "That's the fact," he told the Weekly, saying that the detainees had been incarcerated for two years without any recourse to the courts. "It's an inherent right of international law that arbitrary detention does not happen."
The US Supreme Court will, in the next few months, hear a case brought on behalf of 16 foreign detainees -- two Britons, two Australians and 12 Kuwaitis -- arguing that they can challenge their detention in US courts. The case is crucial in the debate about whether US courts have jurisdiction over Guantanamo, and much is riding on the ruling. Numerous human rights defenders have filed amicus curiae ("friend of court") briefs denouncing the indefinite detentions.
Colin Nicholls, president of the Commonwealth Lawyers Association (CLA) in London, which filed an amicus brief in the case, underscored the gravity of the Supreme Court decision, telling the Weekly that depriving the detainees the right to challenge their detention is "contrary to legal principles common to Anglo- American jurisprudence going back several centuries". The Guantanamo detentions, he argued, raise "fundamental issues" relating to the rule of law and the response of democratic states to terrorism.
General human rights law -- which the IBA's Ellis notes has "developed significantly" since World War II, after which the 1949 Geneva Conventions were drafted -- draws on the Universal Declaration of Human Rights, considered the "authoritative statement of customary human rights law", says Ellis. The 1948 declaration enshrines the right of habeas corpus, noting both that "No one shall be subjected to arbitrary arrest, detention or exile" and that everyone is entitled to a "fair and public hearing" by an independent tribunal.
"That's what the writ of habeas corpus is all about," says Ellis. "You cannot hold people for an indefinite amount of time without access to judicial review." An amicus brief submitted to the Supreme Court last month by the IBA through its Human Rights Institute was the first such brief the group has submitted to a US court. Asked what warranted such an unprecedented step, Ellis remarks, "For me, it is so fundamental. It's hard to think about a right more fundamental than this. It's something that is so important that governments cannot, even in times of crisis, weaken it."
Human rights advocates point to Article 9(4) of the International Covenant on Civil and Political Rights, to which the US is party: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." The Human Rights Committee, the body set up by the ICCPR treaty to oversee its implementation, has made clear that this crucial article is non-derogable, even in times of emergency.
Wendy Patten, US advocacy director at the New York- based Human Rights Watch, points out that the Pentagon does not proffer blatant mistruths, but has nonetheless become selective in its meting out of justice. The laws of war, she concedes, indeed do not require that combatants be charged before the "end of hostilities" or be provided with lawyers to challenge their detention in court. "But that fact alone does not make the US detention of enemy combatants lawful," she told the Weekly. The US government, she warns, has to "comply fully" with international humanitarian and human rights law. Instead, she maintains, the Bush administration has "selectively invoked some provisions" -- the authority to hold combatants without charge until the end of hostilities, for example -- "while failing to respect others" -- such as the requirement to individually determine the status of detainees.
Guantanamo detractors are a surprisingly varied bunch. Former US judges and diplomats, international legal institutions, and the International Committee of the Red Cross (ICRC) have all expressed deep concern. Even members of the military legal establishment have shown unease over the repercussions of Guantanamo. Neal Katyal, a professor at Georgetown University who is also chief counsel for the US military defence lawyers at Guantanamo Bay, suggests that the government's position has gone "too far".
"We should be looking for a middle ground, one that reconciles our constitutional history with the pragmatics of modern crisis," he told the Weekly. "The government should not be able to create a legal black hole," he argues. "But it also must not be subject to the same rules in the midst of a national security emergency as it faces in non-crisis situations." When government officials rashly claim that all the Guantanamo detainees are not entitled to civilian review, they "generalise far too much", says Katyal. The result, he concludes, is that they "deprive too much liberty in the process".
By issuing a blanket declaration that all the detainees are not POWs, but rather "enemy combatants", Ellis suggests that the US is "trying to separate these rights and argue that they have no rights". The Geneva Conventions, he counters, anticipated this. "If you are not a POW, the Geneva Conventions provide protections," he says. "No matter how you classify them, they are still eligible for basic protections and rights."
One of those rights, argues Ellis, is protection from indefinite detention. The Pentagon's argument in this respect borders on reductio ad absurdum. The detainees captured in Afghanistan are not POWs because they were fighting as mercenaries for Al-Qa'eda, which is not a state army. They did not have to be released (as POWs who are not believed to be guilty of war crimes must be) at the end of hostilities in Afghanistan because the war in Afghanistan is part of the larger "war on terrorism". The US has made clear that it regards the war on terrorism as a "real" war, not a "metaphorical" one, but real wars are declared on a stated enemy. This enemy -- terrorism -- would seem to be embodied by the nebulously structured Al-Qa'eda, which is not recognisable as a traditional party to a conflict under the laws of war, and so the laws of war do not apply. Even though it is a war, the laws of war do not apply. Ellis calls this logic "absurd on the face". Amnesty's Freer says, "The US administration is trying to have its cake and eat it too."
By denying tribunals to determine the status of the detainees, the US refuses to acknowledge that some of the prisoners could simply be people who were in the wrong place at the wrong time. Without any recourse to state their claim, the result is a reverse logic: the detainees seem to be guilty by virtue of being incarcerated in the first place.
Many human rights researchers believe that the number of wrongful detentions at Guantanamo is significant. HRW's Patten points out that former detainees themselves, and press reports citing US officials in Afghanistan, suggest that "civilians with no meaningful ties to the Taliban or Al- Qa'eda are, or were being held at Guantanamo".
What's at stake? Many say it is human rights the world over. Amnesty's Freer states that the detentions at Guantanamo Bay set an "appalling example" for the rest of the world. "For a country as powerful and influential as the US to be the one setting this example places us even more firmly on the road to a world in which arbitrary, unchallengeable detentions become acceptable." For perspective, Freer adds: "One only has to think of the outrage that the US government would express, and the action it would take, if scores of its nationals were held by another country on an offshore military base, indefinitely and without any sort of legal process."
