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THE GUANTANAMO 600 DETAINEES

When the Bush Administration intervene militarily a little more than two-year ago in Afghanistan for the purpose of overthrowing the Taliban Government in that country and also for the purpose of capturing Osama Bin Laden and members of Al Queda, the US forces detained and imprisoned about 600 men whom they classified as “suspected terrorists and enemy combatants”.

Those detainees were transported in batches to a US military base in Guantanamo, Cuba, where they have been held ever since. They are being held in a severe detention regime, in separate cells. They are moved about in leg shackles and chains and handcuffs, and are always accompanied by two well-armed military guards.

Most horrible of all, the Bush Administration decreed that as enemy combatants they have no legal rights whatever. They were simply left to languish indefinitely in their detention cells.

Such a situation is more suited to the law of the jungle where the strongest and fiercest animal dominates and prevails over the weaker ones and where might constitute the basis of an unwritten jungle law. This sort of reasoning seems to have been borrowed by President Bush and his administration from the jungle, in regard to the so-called “enemy combatants and suspected terrorists”.

But on 28th June 2004, the United States Supreme Court heard applications brought before it regarding the rights of the said detainees at Guantanamo. The Court held that all of them had legal rights to contest their detention in United States courts. Up to the date of writing – 4 July, nine of the detainees had already filed cases through their lawyers, in the US District Court in Washington challenging the legality of their detention. In particular, the lawyers appearing in the cases will argue that the Bush Administration detained and imprisoned the men unconstitutionally and illegally.

Part of the argument of the Bush Administration is that the men being captured in Afghanistan and Pakistan and only held in Guantanamo on Cuban soil, have no recourse to US Courts. But it is well known that several US Governments have been and continue to be in effective legal control of the territory they hold in Guantanamo and, as such, the detainees have a right through that US territorial and legal control to make application to US Courts regarding their indefinite detention without trial.

Furthermore, the fact that the men were classified as “suspected terrorists” , the word “suspected” should imply that the men ought to have a legal right to file applications in the US Courts of law to prove whether any such suspicion was unfounded. It does not take a trained lawyer to see this. It is simply a matter of the basic legal right of these men. But the Bush Administration remained blinded to such and remained in denial of such an obvious conclusion.

It is a cardinal principle of the law that no person should be held without charge and/or without trial indefinitely. International Human Rights law is clear on this matter. Article 9 paragraph 4 on the International Covenant on Civil and Political Rights states: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a Court, in order that the Court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”.

Article 9 paragraph 5 of the said Covenant or Treaty provides as follows:

“Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensations”.

The Constitution of the United States of America also speaks of the right not to be subjected to the loss of one’s liberty without charge and without the right of accessing a Court for a determination on such matter.

The Bush and Blair Government have been close collaborators in prosecuting the wars in Afghanistan and also in Iraq. But the British Government, speaking through the voice of its Attorney General stated that is could not agree with the policy of the American Government in detaining the 600 men at Guantanamo indefinitely without legal rights and without access to Courts of law.

As a matter of fact there are two British nationals who are so detained at Guantanamo. The are among the so-called “suspected combatants”.

The US District Court in Washington will, in the fullness of time, give its decision on the application of the nine detainees. It is an important legal and political matter. Whatever decision is given by the Court, one thing has already been decided by the US Supreme Court. That is, that President Bush had no legal rights in detaining the 600 men indefinitely while denying them any access to a Court of law to challenge their detention…

Victor Cuffy
Lawyer and President\SVGHRA