The War on Terrorism: The Guantanamo Prisoners, Military Commissions & Torture

Center for International Policy Conference at
Carnegie Endowment for International Peace
Washington, D.C.
March 5, 2003

Remarks of Michael Ratner

Imagine the following scenario. Somewhere in the world, the United States fights a war and captures and detains enemy soldiers; 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 money 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, Guantanamo Bay, Cuba, and imprisoned for years. The captured soldiers are not accorded the rights of prisoners of war. The alleged terrorists are not charged with a crime. They do not have access to their families or attorneys.

Maybe, years later, a few will be released, others may remain in Guantanamo indefinitely and others, possibly, will be tried by a special military commission. That trial may occur at Guantanamo, or wherever the United States chooses, even on an aircraft carrier. The trial may be entirely in secret. If they are found guilty, they may be executed and their bodies disposed of, possibly at sea. They might be found not guilty by the tribunal. However, even then, Secretary of Defense Rumsfeld has said that they may not be released. He has announced that the United States is engaged in 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.

In fact, the scenario is not imaginary. Some of this is already occurring and if the Bush Administration has its way, the remainder will as well.

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 March of 2002 a petition for a writ of habeas corpus was filed on behalf of the detainees in Guantanamo, but the petitioners lost. 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. 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. 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, 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. The serious threat the detentions raise is not just to the rights of those detained 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. The right to be free from executive detention is in serious jeopardy.

There may well be a number of terrorists among those imprisoned. However, the Bush Administration has refused to bring them before any kind of tribunal or court that can determine whether they 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." 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.

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, he said, 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

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 they come under the protections of 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). In addition, anyone captured, POW or otherwise, can still be criminally prosecuted. 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.

By deciding unilaterally that it would not apply the actual terms of the Geneva Conventions to those captured in the theater of 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, the detainees 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, since, 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.

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. This argument does not address the rights of former Taliban combatants now in custody. Furthermore, 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 type of activity 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 were captured outside the theatre of the Afghanistan war are examples of the legal twilight surrounding the "war" on al Qaeda. There is very little information available regarding these people, except for six prisoners 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." The Geneva Conventions do not apply to these six men, but their rights should remain 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." 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.

Conclusion

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 to the rights of all people. Its assertion of the power to imprison people indefinitely, without charges and court review, is 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. The Bush Administration's plan to try some of the Guantanamo detainees and others by ad hoc military commissions undercuts a system of justice and procedures that is necessary to insure fairness, and that it is the guilty, not the innocent, that are punished. Without a legal framework, the violations of the rights of Guantanamo detainees will continue, and will continue to threaten the rights of others who depend on the fair application of the law.

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