Co-editors: Seán Mac Mathúna John Heathcote
Consulting editor: Themistocles Hoetis
Field Correspondent: Allen Hougland
Captured Taliban fighters may not have the rights normally afforded defendants in criminal cases or prisoners of war, but according to U.S. military authorities, they have been provided copies of the Quran and small towels on which to kneel while praying. Under present U.S. policies, praying may be their only hope.
The question is, what right does the U.S. Government have to transport these prisoners thousands of miles from Afghanistan to a navy base on Cuba? What legal authority permits them to be held in small outdoor cages, without charges, access to lawyers, or the protections of any domestic or international laws?
The Bush Administration, known for its dislike of international laws, argues these fighters are "illegal combatants," and therefore not protected by the Geneva Conventions on prisoners' rights. Perhaps this makes sense, since these prisoners were not captured during a "legal" war. The Bush Administration's war against the Taliban for refusing to hand over Bin Laden, was never "declared" by Congress as required by the Constitution.
Instead, its war is being fought based upon several "Executive Orders," unfortunately much the way the Taliban ruled Afghanistan.
Legal war or not, the overwhelming majority view is that combatants captured in an international armed conflict are at minimum prisoners of war entitled to the protections of the Geneva Conventions of 1949. This is certainly true of the Taliban fighters, and likely the al Qaeda fighters as well. If the al Qaeda fighters are "illegal combatants" solely because they come from foreign countries, doesn't that make the U.S. soldiers in Afghanistan "illegal combatants" as well? If captured, may they be denied prisoner of war status and flown to be held in outdoor cages in some al Qaeda hideout in Somalia or the Sudan?
U.N. human rights chief Mary Robinson has stated she believes the Taliban and al Qaeda prisoners are entitled to the protections afforded by the Geneva Convention. The International Committee of the Red Cross (ICRC) agrees, and has demanded access to the prisoners. Human Rights Watch and Amnesty International have said the prisoners' treatment fails to meet international norms.
Robinson has pointed out that when a prisoner's status is in doubt, under the Geneva protocols, to which the United States is a party, the issue must be determined by an international tribunal. On the other hand, President Bush distrusts international tribunals. Maybe his new Military Tribunals, set up by one of his Executive Orders, all decisions of which are subject to his review, can decide the status of these prisoners. That way he can overrule the decision should it be swayed by well-established international laws.
The Bush Administration has yet to claim that a single prisoner transported to Guantanamo had anything to do with the September 11 attacks on the World Trade Center and the Pentagon. These terrorist attacks killed over 3,000 innocent civilians and were clearly crimes against humanity. Many people believe dropping "Little Boy," the atomic bomb which exploded over Hiroshima on August 6, 1945, and "Fat Man," the bomb dropped on Nagasaki three days later, also were crimes against humanity. Within a year over 100,000 innocent civilians died as a result of those attacks. Would those acts have justified taking U.S. soldiers who had nothing to do with the bombings as prisoners, labeling them "illegal combatants," and transporting them to outdoor cages thousands of miles away?
Brig. Gen. Michael Lehnert, commander of the U.S. forces overseeing the operation in Guantanamo Bay, has stated the Taliban prisoners "spend their days praying, meditating, eating." In apparent disregard of their religious beliefs, their heads and beards have been shaved for "health" reasons. On the up side, it does appear the prisoners have access to medical care. At least one prisoner shot during the fighting has undergone surgery since being transported to Guantanamo Bay. Nevertheless, Amnesty International says the plan to house prisoners in six feet by eight feet outdoor cages "falls below minimum standards for humane treatment." But White House Press Secretary Ari Fleischer says that President Bush is satisfied with the prisoners' treatment: "The President is satisfied that they are being treated as Americans would want people to be treated." So in place of the Geneva Conventions we seem to be adhering to a standard established by American public opinion.
Steve Lucas, spokesman for the U.S. Southern Command in Miami, calls the prisoners "suicidally murderous people." This is sure to sway public opinion, and justify treating the prisoners outside of the norms of international law. We can rest easy since, as Defense Secretary Donald H. Rumsfeld said a few days ago, we're holding "these folks .. in an environment that is a lot more hospitable than the environments we found them in." That may be true if we found them in caves being bombed by B-52s.
The U.S. Government is preparing to hold as many as 2,000 prisoners at Guantanamo Bay. They may eventually be put on trial before President Bush's special military tribunals. No one knows for sure what will happen to them in the future. According to the Geneva Conventions, war prisoners are not supposed to be forced to give information beyond their name, rank, serial number and date of birth. Clearly that standard is not being followed. These prisoners have been and will be questioned about anything and everything they know about the rise and fall of the Taliban. According to the Geneva Conventions prisoners of war must be returned home at the end of "active hostilities." Since there is no formally declared war, it is unclear when the Bush Administration will consider "active hostilities" to have come to an end. If it considers these detainees to be prisoners in the "war against terrorism," President Bush has made clear this war will take many years to win. So these prisoners may have to get used to living in Guantanamo Bay.
Concern over the treatment of these prisoners may eventually come from unexpected sources. European diplomats have confidentially expressed concern to the State Department over the prisoners' legal status. The Saudi government has questioned what rules will apply to some of its citizens being held prisoner. Four of the prisoners are British and Foreign Secretary Jack Straw recently said in a BBC interview: "These people . . . are accused of having been members of the most dangerous terrorist organization which the world has ever seen. That does not mean for a second that they do not have rights, and where they are British citizens, it is our responsibility to ensure that they receive those rights." Others have taken a stronger stand. Doug Henderson, a senior Labour Member of Parliament and former armed forces minister, said: "If we're representing civilised society, we've got to uphold the norms, rules and legal obligations of civilised society."
One cannot fight violations of international law by committing further violations of international law. The United States bombed Afghanistan to get rid of the Taliban and its terrorist al Qaeda "guests." Its military actions succeeded and a widely recognized Government has now been installed in Kabul. Prisoners captured in Afghanistan should be left there to face justice there. The U.S. Government certainly has sufficient influence over the new Afghani regime to insure that prisoners who committed crimes against humanity are detained and tried by that new Government. Certainly prisoners transported to U.S. soil are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. Prisoners who have not committed crimes against humanity should be promptly returned to Afghanistan or their home countries.
Any trials conducted against prisoners suspected of having committed crimes against humanity should be guided by principles of fairness, including the presumption of innocence provided for in the ICCPR and the Third Geneva Convention. In the end, the treatment of these prisoners must be guided by well-established domestic and international laws, not public opinion as interpreted by President Bush. We can never credibly determine whether these prisoners are innocent, or simply war combatants, or murderous terrorists, if we don't respect the rule of law in the inquiry to find out. To do otherwise will only serve to compromise our moral authority to sit in judgment of those who have no regard for justice.
Peter Schey is a columnist for the Daily Journal, President of the Los Angeles-based Center for Human Rights and Constitutional Law and a member of the National Lawyers Guild