Most of those detained have been jailed in small outdoor cells for more than 18 months, and are likely unaware of the many legal challenges filed on their behalf.

 

The case of the Guantanamo prisoners has sparked significant controversy in the United States.

Some legal experts there question the validity of holding foreign nationals indefinitely without access to lawyers and with no real indication of when or if they will be allowed to defend themselves in a court of law.

Even the US Supreme Court entered the fray recently, deciding to review a lower court decision that denied the detainees the right to challenge their status in civilian courts.

But the prisoners themselves, whose lives and freedom are at stake, probably know nothing about it, said Steven Watt, an attorney with the Center for Constitutional Rights, a New York-based legal centre that is working for the families of two British and two Australian detainees.

“What we’re seeking is some form of due process for the detainees”

Steven Watt
Attorney, Center for Constitutional Rights, New York

“They don’t even know that there have been legal proceedings on their behalf and there’s a likelihood that they don’t even know that the Supreme Court has decided to review the lower court’s decision,” Watt said.

That is because the detainees have essentially been cut off from the outside world, denied the ability to communicate with anyone other than US military personnel, intelligence officers and representatives from the International Committee of the Red Cross.

Human rights violations

Watt said the current situation was a blatant human rights violation.

“What we’re seeking is some form of due process for the detainees,” he added.

There is, however, intense debate over the detainees’ legal status and what rights they should be afforded under the US constitution and international law.

Detainees in orange jumpsuits 
in a holding area

While some argue that non-US citizens captured and held in non-US territories are not entitled to any constitutional protection, others say the fact is that the base at Guantanamo Bay is an American-controlled area where US laws should apply to military prisoners.

Philip Lacovara, a former deputy solicitor general of the United States, said the Supreme Court’s decision to review the case was a likely indication that Chief Justice William Rehnquist would assert that US courts do have some jurisdiction in this type of situation.

“I think there’s a real chance that he will conclude that when people are detainees in territories over which the United States has control, that the courts have the final authority to determine whether or not the military has the justification and the power to proceed in the way it chooses to proceed,” Lacovara said.

Geneva Conventions

Then there is the matter of international law and whether the Bush administration is violating certain articles of the Geneva Conventions and other global agreements.

Several human rights organisations have argued that the Taliban detainees captured during fighting in Afghanistan should be classified as prisoners of war, not as unlawful combatants.

Wendy Patten, a spokeswoman for Human Rights Watch, said, “The United States has failed to properly determine the status of the detainees” by not holding competent tribunals for them, which are called for under Article 5 of the Geneva Convention if an enemy combatant’s military status is in doubt. 

“What’s really at stake here is whether the United States can carve out a place in the world that is beyond the law"

Wendy Patten,
Human Rights Watch

“What’s really at stake here is whether the United States can carve out a place in the world that is beyond the law,” Patten said.

Yet, even if the military were to hold competent tribunals for the detainees, it would likely reach the conclusion that the Taliban was not the legitimate regime in Afghanistan and therefore its fighters would not be given POW status, said Ruth Wedgewood, a professor of international law at Johns Hopkins University and former adviser on military tribunals to the Defense Department.

“They were the de-facto government at the time, not the recognized government,” Wedgewood said.

Either way, the Geneva Convention allows the US military to detain captured enemy fighters until an end to the war is declared, she added.

“Even if they are lawful combatants [POWs]they still can be detained indefinitely without trial,” she said.

However, Watt pointed out that it has been nearly two years since most of these al-Qaida and Taliban members were first detained.

Legal protections

Rick Wilson, director of the International Human Rights Law Clinic (IHRLC) at American University, said that if the administration’s goal was simply to keep the detainees incarcerated for intelligence or national security purposes, then by designating them as POWs “they could have accomplished what they tried to do in de-facto”.

“You are always protected by basic human rights protections and the most basic human rights protections suggest you cannot be held incommunicado without access to a tribunal to determine your status”

Rick Wilson,
director, IHRLC, American Univ

Yet, even though the detainees have been classified as unlawful combatants, at the very least, they should still be entitled to certain legal protections under international human rights agreements such as the International covenant on Civil and Political Rights, experts said.

“You are always protected by basic human rights protections and the most basic human rights protections suggest you cannot be held incommunicado without access to a tribunal to determine your status,” Wilson said.

Article 9 of the International Covenant on Civil and Political Rights, a UN document signed by the United States in 1992, underlines a similar principle:

“No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law… Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”

'War on terrorism'

One of the major concerns among international lawyers and human rights activists is that even if the detainees were categorized as POWs, the US-declared war on terrorism is unlike any conventional conflict fought between two states.

“It’s not like traditional warfare,” Watt said. “It’s not like World War II, so we’re going to have to rely on the [US] government to decide when this amorphous war ends.”

No one knows exactly when the war on terrorism will end, thus clouding the issue of when the prisoners deserve to be released.

The length of the detentions seems to be at the heart of the debate at this point. Many are questioning why, if the Defense Department has concrete evidence against them, it has yet to bring formal charges against any of the detainees.

With reports saying that as many as 30 of the prisoners have attempted suicide thus far, there needs to be a more expedient path to resolution, activists say.

“People would rather know that they have ten years in prison to serve, rather than face indefinite detention,” said Alistair Hodgett, a Washington spokesman for Amnesty International.

Military tribunals

Military tribunals for the detainees
will take place at the base in Cuba

The Bush administration said in July there were at least six detainees eligible for military tribunals, but no timetable had been established for when those tribunals might take place. Wedgewood said difficulty of procuring reliable intelligence from the detainees was the reason for the length of their confinement.

“The process of interviewing these people is enormously complicated,” she said. “Not everyone is going to tell you the truth the first time.”

That was also why the Pentagon had denied the detainees the right to consult with lawyers, she said.

“The first thing an attorney would do is tell them to shut up,” she said. “Once you inject an attorney into the situation, the possibility for intelligence gathering is over.”

But many activists like Hodgett said such an attitude would diminish the ability of the United States to promote basic human rights principles in other, less democratic nations.

“Certainly lots of people around the world that look to the US to protect certain rights are disheartened when they see the US trying to slip out of those standards,” he said.

Hodgett said he worried that countries with notoriously bad human rights records would look to US actions with the Guantanamo detainees as a license to violate international law.

“They now have the perfect cover,” he said. “They’ll say, ‘Well we’re holding these people in the context of the war on terror.’”