[Gitmo’s darkness] Time for change and enlightenment (1)

A detainee is carried by military police after being interrogated by officials at Camp X-Ray at the U.S. Naval Base at Guantanamo Bay, Cuba, Wednesday, Feb. 6, 2002. REUTERS Marc Serota MS/TRA - RTR6B19

Moreover, the president suspended the military commission proceedings in Guantanamo and argued that instead of military commissions, he would prefer federal courts or the military justice system prosecute detainees in Guantanamo. The order was presented as an endeavor to return America to the moral high ground in the global war against terrorism. Obama stated that “we intend to win this fight. We’re going to win it on our terms.”

Nonetheless, on May 15, President Obama announced that military commissions would continue to be used along with US federal courts to try suspected terrorists. However, he concurrently ordered certain changes to the rules governing the conduct of these commission trials to make them conform with international fair trial standards. He stated that “this is the best way to protect our country, while upholding our deeply held values.”

For some human rights groups, this was a disappointing development and a setback in Obama’s detention policies. For instance, Jonathan Hafetz from the American Civil Liberties Union (ACLU) argued that “it’s disappointing that Obama is seeking to revive rather than end this failed experiment.” Although there is a truth to these arguments, Obama’s adoption of the spirit of constitutionalism as a matter of principle is noteworthy. In this sense, the new administration’s embracement of the idea that the rule of law and constitutional rights and protections apply to every person under US jurisdiction, even in times of war, is a big step forward in the post-Sept. 11 legal landscape. However, there is more progress to be made on this issue.

Terrorist attacks on the World Trade Center and the Pentagon on Sept. 11 marked a watershed in America’s domestic and foreign policy. In both spheres, the Bush administration adopted a somewhat new paradigm dominated by “national security” concerns. In domestic policy, the manifestation of this security-oriented paradigm meant the curtailment of basic rights and individual legal protections. While national security concerns gained priority, human rights and civil liberties — core values of Western civilization upon which the United States was founded — were put on the backburner in the post-Sept. 11 era. For instance, in order to fight terrorism, the Patriot Act, which put serious restrictions on basic rights and protections, was enacted within weeks of the attacks. Moreover, in order to deal with the suspected non-citizen terrorists, the president issued a military order in November 2001 and there claimed the authority “to detain without time limit any non-citizen whom the president has ‘reason to believe’ is a member of al-Qaeda, is involved in international terrorism or has knowingly harbored such members or terrorists.”

In this respect, by early 2002, the United States started to operate its naval base at Guantanamo Bay, Cuba, as a detention camp where suspected terrorists were detained. However, there has been a growing concern in the international community that Guantanamo has been a center for grave human rights violations. Therefore, since Jan. 11, 2002, when the first detainees were transferred to the camp, Guantanamo has been subject to wide public criticism. And the writer of these lines will endeavor to analyze Gitmo from an international human rights perspective.

The war in Afghanistan, launched in 2001 as part of the global war on terror, supplied the constitutive human source of Gitmo. Beginning in early January 2002, the US started to transfer suspected al-Qaeda members captured in Afghanistan to the Guantanamo detention camp.

Legal limbo and habeas corpus

The primary intention of the US administration with respect to suspected terrorists held in Guantanamo Bay was to put them beyond the reach of the justice system of the United States in order to eliminate judicial scrutiny of its detention policies. The underlying idea was to be able to restrict the basic rights and legal protections of the detainees, outlined both in the US Constitution and in international human rights instruments, since “the Bush administration considered it a national need that these men be imprisoned and held in prison indefinitely.” These ideas were echoed by President George W. Bush in November 2001, when he stated that “we must not let foreign enemies use the forums of liberty to destroy liberty.” Moreover, in November 2001, Vice President Dick Chaney announced that combatants captured in Afghanistan “don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process,” adding that they deserve to be “executed in relatively rapid order” by a special commission like the German saboteurs dispatched in World War II. In this sense, in order to realize and legally justify these objectives and to form an extrajudicial sphere, the Bush administration initiated a number of policies.

To begin with, the government established special military commissions to try the detainees outside the traditional civilian and military justice systems. However, there has been a growing opposition to the use of these courts since they do not operate under the principles of law and rules of evidence generally recognized in US courts. Moreover, it has been argued that these ad hoc courts lack independence from the executive branch. Therefore, it is commonly argued that in terms of international fair trial standards, the military commission scheme has been a system unable to deliver a fair trial.

Second, the administration denied that detainees captured in Afghanistan were prisoners of war (POWs). The government preferred to label them unlawful enemy combatants. The underlying idea was to put the detainees beyond the reach of the Geneva Conventions (1949), which govern POWs, and deprive them of the internationally recognized rights they would have as prisoners of war. In other words, the US government’s assumption was that the designation of the detainees as enemy combatants would strip the detainees of any right they would have under the Geneva Conventions. Moreover, the classification of detainees as enemy combatants would also prevent the involvement of international oversight mechanisms, such as the International Red Cross, which would have “rights to inspect and oversee the prison camps and their detentions under the Geneva Conventions.” The legal discussion on whether the detainees in Guantanamo are enemy combatants or prisoners of war is beyond the scope of this article. Suffice it to say that the basic rights specified in the International Covenant on Civil and Political Rights (ICCPR) and in other human rights instruments, including the Universal Declaration of Human Rights (1948), should apply to every member of the human family. In this sense, detainees in Gitmo, regardless of their legal status, should be entitled to the basic and non-derogable rights outlined in international human rights and humanitarian law.

Third, the location of the detention camp had cardinal significance for the actualization of the aforementioned objectives. Therefore, the legal and geographical status of the camp had to serve the Bush administration’s intention to prevent American courts from getting involved. This would render possible the creation of a law-free zone within which detainees would be deprived of certain rights, including habeas corpus. And this was the basic idea behind choosing the naval base at Guantanamo Bay.

*Ömer Zarplı is a student at the department of global and international affairs at the Middle East Technical University (ODTÜ) and an intern at the Human Rights Agenda Association.