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Future of Guantanamo Bay Detainees Remains Uncertain - 2003-05-15

Twenty-two-year-old Rustom Khan was arrested in northern Afghanistan in late 2001 by U-S forces. He was one of hundreds of people taken prisoner in the military campaign that ousted the Taliban following the September eleventh terrorist attacks on New York and Washington.

Though Mr. Khan denies any affiliation with the Taliban, he was captured on a stretch of road used by Taliban fighters fleeing to the southern city of Kandahar. Last Saturday, after being held for more than a year at the U-S Naval base at Guantanamo Bay in Cuba, Mr. Khan returned to Afghanistan. He says he was never told just how long he would be detained. "If you ask them how long I would remain here; they never give an answer that I would be here for one day, ten days or one year. Different delegations visited our camp and asked us about the behavior of the prison keepers, health and food conditions. In fact, there was no need to complain to the visiting delegations because the food was very delicious. They gave us meat twice a week, including mutton and fish."

Mr. Khan is one of 36 prisoners who have been released from Guantanamo Bay since the United States started moving detainees to the remote base in Cuba in January 2002.

U-S military officials say more detainees will be released in the near future. The move comes after Washington said it will expedite the process in response to complaints from many of the 42 nations - including U-S allies Britain and Pakistan - whose citizens are being held there. Pentagon officials say the prisoners are dangerous and include leading members of the al-Qaida terrorist network. Yet many observers still ask why have they been held for so long.

U-S Navy spokeswoman Lieutenant Commander Barbara Burfeind says the prisoners can not be freed until they're cleared by US intelligent agencies, federal law enforcement and Defense Secretary Donald Rumsfeld himself. "There is a pain staking process going on in terms of assessment of their intelligence value and possible further threat. Because we don't want to be releasing anyone who would go out there and commit more terrorist attacks. There is a huge prevention aspect to this as well. If there is intelligence available to help prevent future terrorist attacks then we want to make sure that we do it right."

Lieutenant Commander Burfeind points out that the prisoners receive good medical care and those who have been there for a while, have gained, on average, about six kilograms.

But Jonathan Turley, a constitutional law professor at George Washington University, argues that despite the healthy servings of mutton and fish, these men have few if any rights. He believes these men have been stripped of due process their right to a trail or legal counsel. "Guantanamo Bay was created to avoid a legitimate court of law. The Bush administration intends to hold hundreds of people without a trial indefinitely. It is a place of arbitrary justice.

Professor Turley argues that Guantanamo Bay -- a US military base held on a perpetual lease from Cuba -- was chosen deliberately as a legal loophole. He says US constitutional law doesn't apply because the Naval base is not on US soil. "The federal courts have drawn a distinction of rights within the country and rights that are claimed outside of the country. Foreign nationals are not given the same protection if they are left outside our borders. Ultimately, Guantanamo Bay represents an effort by President Bush to create an alternative court system. A court system that is run by his rules, where appeals are barred and where he has prohibited the application of US constitution or statutory law. That represents an alarming assertion of power." In essence, Professor Turley says detainees are beyond the reach of any court and can be held indefinitely.

But Douglas Kmiec Dean of the Catholic University of America School of Law, says a distinction must be made. He says many of the detainees at Guantanamo Bay may not be run-of-the-mill convicts, but terrorists connected to Osama bin Laden's al-Qaida network. "This is wartime, not peacetime. This is the interrogation and detention of individuals who we have good reason to believe are supporting terrorist activity. And we are interrogating and detaining them not for purposes of criminal prosecution but for purposes of preventing another terrorist attack. In essence, it is a strategic military decision to provide for the common defense of the United States. That is fundamentally different than what we do with organized crime or drug crime or other things that go before a federal court. Our interest in the detentions and interrogation of those being held in Guantanamo is to make sure that September 11th never happens again."

Professor Kmiec says that during wartime, the president has the right as Commander-in-Chief to hold these men and try them before military tribunals. And in November 2001, President Bush signed an Executive Order authorizing the use of military tribunals to try suspected terrorists.

Many analysts say the Pentagon is preparing for these tribunals, although it hasn't announced when or where they will be held. The tribunals can be conducted in secret and they don't have to provide those accused the full protections of the American legal system.

For guidance, the Bush administration is looking at the last time the United States carried out military tribunals during the Second World War. Catholic University Law School's Professor Kmiec, says the 1942 case provides the legal framework for future tribunals against al-Qaida members. "Ex Parte Quirin is a case involving eight Nazi saboteurs that came to our shores with the idea of destroying industrial facilities that would hamper our ability in World War Two. These individuals were out of uniform, they came in stealth, they did not follow the rules of war. They operating essentially like a terrorist cell."

In the Quirin case, six of the eight saboteurs were executed. But human rights watch groups say one major difference between this case and the proposed tribunals of today are the Geneva Conventions of 1949. James Ross, a senior legal advisor of the New York-based Human Rights Watch, says "the main problem from the perspective of international law in citing the German saboteurs case is that it was handed down in 1942, before the current Geneva Conventions were in place. An important aspect of the 1949 Geneva conventions is that there must be individual determinations of the status of the belligerents caught on the battlefield. The Bush administration ignored the Geneva conventions by making a blanket determination that none of those captured in the Afghan war were entitled to prisoner-of-war status."

Prisoner-of-war status would grant the prisoners more rights under international law. But James Ross concedes that many of the men at Guantanamo Bay are most likely not entitled such status. Still he argues that each case should be reviewed independently to make that determination.

Most analysts agree that the US government will face challenging legal issues regarding the status and possible trial of detainees at Guantanamo Bay. Meanwhile, these men will continue to ponder their fate.