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Detainees and the War on Terror


The Bush administration has decided to apply the Geneva Conventions to all terrorism suspects in U.S. military custody, a policy shift spurred by last month's Supreme Court ruling affecting the detainees held at the U.S. military prison at Guantanamo Bay, Cuba. The Supreme Court ruled on June 29 that the special military tribunals set up by the Bush administration to try the terrorism suspects at Guantanamo violated international law and were not authorized by federal statute.

Following the September 11, 2001, terrorist attacks on the United States, the Bush administration mobilized to fight what it called" a different kind of war". To that end, President Bush sought to expand his powers to confront the terrorism threat, often bypassing Congress to enact policies aimed at preventing another terrorist attack.

Administration lawyers argue the president has the unilateral authority as Commander in Chief to take the necessary measures to pursue the global war on terror.

One early step was to send al-Qaida and Taleban terrorism suspects captured in Afghanistan and Pakistan to the U.S. military prison at Guantanamo Bay, Cuba. A camp at the base had been used in the 1990s to house Haitian and Cuban boat people. But after the captured militants began arriving, the U.S. military built a new facility to hold them. The first prisoners arrived in early 2002. And at its peak, the prison held almost 700 inmates. Most have been held without charges, leading to protests by human rights groups.

Katherine Newel Bierman of Human Rights Watch says, "The United States has an obligation not to detain people without charging them for prolonged periods of time. There are exceptions for that, limited exceptions during times of warfare. Those exceptions have not been met at Guantanamo."

Law Professor Mary Cheh at George Washington University agrees, citing the protections afforded to prisoners of war under the Geneva Conventions, ratified by the United States along other countries. According to Cheh, "One of the reasons we have the Geneva Conventions is that when people are picked up in a battlefield situation we agree that we'll follow basic norms on how we try them. Otherwise we could just lock them up and throw away the key. That's not what we've committed ourselves to."

However, the Bush administration had designated those being held at Guantanamo as "unlawful enemy combatants," and not subject to the Geneva Conventions because they are terrorists.

A Different Kind of Trial for Alleged Terrorists

Because of this designation, the U.S. government wanted to use special military commissions, or tribunals, at Guantanamo to try the inmates in a speedy manner without affording them certain rights they would otherwise have in a federal court or under the military court martial process.

In a military tribunal, defendants can be excluded from the courtroom and evidence that would not typically be admitted in a court martial could be used if a judge thought it was useful. This could include hearsay and information obtained through coercive interrogations or torture.

But the Supreme Court, in its recent five-to-three decision, ruled that the law requires that the procedures governing these tribunals should be consistent with those used in courts martial. The majority also ruled that these commissions were unauthorized by federal statute and violated international law.

By striking down the use of military tribunals, the Court appears to have placed limits on the president's powers in time of war and implied that Mr. Bush had overstepped his authority.

Richard Samp, of the Washington Legal Foundation, is critical of the ruling, saying it limits the president's authority to wage war. Samp says, "While the practical effect of the decision is quite limited, in terms of the symbolic effects of the decision, the effects are really quite large because it is a statement by the Supreme Court that it is willing to second-guess the conduct of the ongoing war that the administration and the United States people are engaged in. That sort of interference is unprecedented in American history."

The case was brought by Salim Ahmad Hamdan, a former bodyguard and driver of Osama bin Laden. Even though the Court ruled in favor of Hamdan, the decision does not mean he or the other 450 inmates at Guantanamo will be freed, nor will the prison be shut down any time soon.

Guantanamo Controversy

The Guantanamo military prison has been the focus of widespread international criticism, including allegations that detainees held there have been subjected to torture. The U.S. government has given repeated assurances that inmates are being treated humanely. It has also allowed frequent visits by the International Red Cross. Yet the suicide by three inmates in June has heightened the criticism and spurred international calls to shut down the facility.

Katherine Newell Bierman of Human Rights Watch says the reputation of the United States has been damaged by seeming to hold the prisoners there indefinitely. Bierman says, "In the end, if some people leave Guantanamo who were actually dangerous and they do something that is wrong afterwards, that reality has to be weighed against the cost of keeping them there indefinitely without trying them. That has been a huge cost for the United States. You can imagine that for every person that has been detained in Guantanamo who is kept from doing something wrong, how many more future terrorists, so to speak, are being made by policies that make the United States look like a hypocrite."

But others say the war on terror requires extraordinary measures. Lawyer Richard Samp says, "When we have the American criminal justice system we usually invoke the mantra that it is better to allow 100 guilty people to go free, rather than to convict one innocent person. When you are talking about American national security and the thousands of enemy combatants whose sole goal is to destroy American society, that same mantra cannot be successfully invoked. Yes, we want to try to give people fair proceedings and certainly we don't want to put people in jail when there is not substantial evidence of their guilt. But frankly, I would put the scale at much closer to one-to-one. I would certainly think it would be a travesty if for every al-Qaida leader who was improperly convicted that we also let go an al-Qaida leader to go on with his intent of murdering Americans."

President Bush underscored this view at a recent news conference, in which he also talked about the dilemma of dealing with those captured in this new kind of war. "See, here's the problem: these are types of combatants we have never faced before. They don't wear uniforms and they don't represent a nation-state. They are bound by an ideology; they've sworn allegiance to individuals, but not to a nation. The Geneva Conventions were set up to deal with armies of nation states, a kind of standard rules of war. So this is new ground," said President Bush.

Geneva Convention Still to be Upheld

Senate hearings have begun with Bush administration officials urging lawmakers to pass legislation authorizing the military tribunals. Yet the proposal is meeting resistance from some Senators of both parties, who argue that the best way to try terrorism suspects is under the existing code of military justice that grants wider rights to defendants.

As the Senate hearings got underway this week, the Pentagon issued a memo acknowledging for the first time that the Geneva Conventions apply to all detainees in military custody. The memo orders that all detainees be treated in compliance with Article Three of the Conventions, which requires humane treatment and a minimum standard of judicial protections.

The statement reverses a position held by the Bush administration that terrorism suspects were not covered by the Geneva Conventions. The White House says the change is in keeping with the recent Supreme Court ruling.

This story was first broadcast on the English news program,VOA News Now. For other Focus reports click here.

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