SPEAKING
FREELY Finding justice in
Guantanamo By Gyan Basnet
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please
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On September 11,
2001, the nature of world politics changed.
Terrorist attacks became "acts of war", and the
"war on terror" became as much a matter for the
military as for the police as the United States'
response to the Twin Towers attack moved beyond
the realm of the criminal law
into that of war and armed conflict.
The
response was guided not simply by inter-state
tensions but by an intra-state shift in the
balance of power. The George W Bush
administration, by adopting the term "global war
on terror", claimed authority to use extensive
power unavailable in peace time including the
right to imprison indefinitely those who were
deemed enemies of the state wherever they might
be.
In effect, alien terrorist suspects
resident for many years in the US were to be held
at a military base at Guantanamo Bay in Cuba
alongside military persons captured in combat
zones. They would be tried without a jury behind
closed doors, and their defense counsel would be
denied access to the testimony of incriminating
witnesses.
Consequently hundreds of men,
many with no discernible tie to any hostile action
against the US, were arrested throughout the world
as "enemy combatants" and transferred to
Guantanamo Bay, a legal black hole that in the
eyes of the American administration was beyond the
reach of US courts.
There have been many
questions and debates and much advocacy among
human-rights organizations, civil liberty
organizations and academia urging the closure of
the Guantanamo prison. The demand has been for
fair question in seeking justice, a proper right
to a hearing in a civil court, and respect for all
human rights.
However, over nine years
have passed since the establishment of the prison,
and it is now over three years since President
Barack Obama took office. His promise to close the
prison, made two days after taking office in 2009,
received a wholehearted welcome from across the
world, but the goal, instead, appears to have
slipped to the bottom of the pile of priorities.
Lord Steyn contemptuously notes: "The most
powerful democracy is detaining hundreds of
suspected foot soldiers in the 'legal black hole'
where they await trial on capital charges by
military tribunal." It is time to ask why the
prison still stands. Have we been duped by the
kind of false promise made by many leaders to gain
cheap overnight popularity? Are human rights and
fundamental freedoms just myths to be used and
misused to serve self-interest alone? The world
remains puzzled.
A hellish creation The detention facilities at Guantanamo opened
in January 2002 in an area designed for long term
detention. Guantanamo Bay has been called a
"warehouse in the war on terror" where enemy
combatants are held without future hope,
regardless of Obama's promise of closure.
According to several sources, between 2002
and 2005 the US transferred to Guantanamo Bay
about 650 men from over 40 countries. They had
been captured in connection with the Afghan war,
or they were suspected of links to al-Qaeda, and
they were effectively accused of being responsible
for 9/11. According to a report from Amnesty
International, the ages of the detainees ranged
from young teenagers to the very elderly.
The military interrogated them, prosecuted
them, defended them, judged them, and, when death
sentences were imposed, acted as their
executioner. Current detainees have been denied
access to counsel, to consular representatives,
and to family members. They have not been notified
of the charges against them, and their detention
is indefinite. Interrogation of the detainees
continues, and the Red Cross has described the
Base as "principally a center of interrogation"
rather than of detention.
Many suspected
of having committed terrorist acts or of being
members or supporters of terrorist organizations
have been held incommunicado at the Base. Their
fate has differed, but most have been subjected to
a unique form of detention based not on the wrongs
that they have committed but on the assessed
danger to which their release might give rise.
Their detention could effectively last "as long as
the seemingly never ending war against terrorism".
They are deprived of rights under
international law that were championed in the
1940s by Franklin Delano Roosevelt and Winston
Churchill, and they are deprived of the protection
that is offered to combatants and civilians in war
and armed conflict under the Geneva Conventions of
1949. The governments of several countries
including Great Britain have assisted the US in
effecting these wrongful detentions at the Base by
their involvement in rendition.
Guantanamo and beyond If one
examines the full story of how the Guantanamo
prison came into being and why prisoners remain
there, a common theme emerges. Anthony D Romero,
executive director of the American Civil Liberties
Union argues that its continued existence as a
prison must be due to the fact that the US regards
itself as being engaged in a global war without
end.
The US administration's perception of
an "everywhere-and-endless war" now threatens to
make permanent the policies that created
Guantanamo. Political philosopher G Agamben
strongly argues that since the "war on terrorism
provides for a potentially indefinite temporal
exception, the war-induced state of exception is
becoming permanent".
Thus Guantanamo
prison alternatively referred to as a "laboratory
in the war on terror", grants the US a showcase
for its military successes - a "virtual, offshore
museum of victory-in-the making". Its existence is
very clear, but its occupants appear as a hazy
collection of orange jumpsuits "rendered uniform",
as Professor J Comaroff argues, "by metal mesh and
wire, the ephemera of incarceration".
Guantanamo Bay apparently became the
selected location not merely for security reasons
but because it was considered to be beyond any US
court's jurisdiction. According to Professor
Phillip Sands it was outside the sovereign
territory of the US, and therefore to the US
administration its detainees would be deprived of
legal protection both from American constitutional
law and from international law.
US law
purportedly does not apply to any detainee there
and certainly not to any foreign national, who is
in any case not a US citizen and is therefore
assumed to be an unlawful enemy combatant.
Professor J Comaroff further argues that the
purpose of holding the prisoners at Guantanamo Bay
was to create a "territorial trap for a mobile
enemy", putting them "beyond the rule of law,
beyond the protection of any courts, and at the
mercy of the victors".
Thus, as Professor
Priest notes, Guantanamo Bay represents a "space
of explicit, intentional, instrumental
contradictions and absurdities - a stain on
American justice". It certainly shows a total
disregard for the values that the US tries to
protect, namely personal freedom and human rights.
It is alleged that in the aftermath of
9/11, many secret prisons opened around the world
for the purpose of transferring, and interrogating
suspect detainees. It is believed that the Central
Intelligence Agency (CIA) hides and interrogates
some of its most important al-Qaeda captives at
secret facilities established after 9/11 at many
locations in Eastern Europe, Africa and Asia.
Terrorist suspects known as "ghost
detainees" are moved frequently between prisons in
different countries, principally "for
interrogation" and typically "outside normal
extradition procedures". These prisons are
operated under the direction of, and are financed
by, the CIA. It is alleged that the agency's
"global gulag" is inextricably linked to secret
police prisons, and Professor McCoy believes that
three thousand terrorist suspects are held at one
or other of these detention centers.
Professor Dana Priest argues that the
unpublicized network of internment camps on
possibly every continent is a "central element in
the CIA's unconventional war on terror": it has
the hallmarks of a worldwide Guantanamo-type
policy. Cross-border transfers take place without
judicial proceedings or military tribunals;
detainees are seriously abused and face the
prospect of being held indefinitely and
incommunicado.
The interrogation
techniques adopted have included "water boarding"
(the near-drowning of a suspect), and the
"stripping, hooding and sodomizing of detainees,
subjecting them to temperature extremes, leading
them around naked on leashes, and attaching
electrical wires to their genitals". According to
Professor McCoy: "CIA tortures techniques have
metastasized over the last 50 years like an
undetected cancer inside the US intelligence
community."
The Guantanamo prison
represents a monstrous failure of justice. It aims
to keep the detainees "in total secrecy", and the
military commission dreamt up by the US
administration is for Professor R Dworkin the kind
of trial one might expect from a lawless
totalitarian regime. So-called enemies are treated
as policy dictates without reference to their
rights as humans. They are beyond the law: yet, as
Professor C Wilke observes, they are subject to a
law that simply does not recognize rights.
Since the Guantanamo prison came into
being, the world has seen great changes both
economically and politically. Economically, the
west is mired in financial debt and a new wave of
resistance to globalization, Occupy Wall Street,
has gained a measure of universal support.
Politically, the Arab Spring has swept dictators
from power, and the European financial crisis has
brought down governments.
Yet Guantanamo
still goes on, and the prospects of it being
closed in the near future appear bleak. Professor
T Friedman argues that this should cause alarm not
only among US citizens and civil liberties groups,
but also among people all over the world. To
safeguard their own citizens' security, foreign
governments must apply pressure now to ensure that
past abuses are not repeated. World opinion needs
to be heard: it demands that the Guantanamo prison
be closed, and it is opposed to any future
detention center allegedly justified by a
permanent global war.
The centuries-old
American jurisprudence relating to fundamental
freedoms and the foundational norms of the rule of
law must never be compromised by presidential
decree. The principles of US practice in applying
the norms of democracy such as "beyond reasonable
doubt", "due process of law" and the "right to
confront accusers in a court of law" have to be
fully respected and must apply equally to all
terrorist suspects detained at Guantanamo and
elsewhere.
The norms of fundamental human
rights, democracy, and personal freedom must be
allowed to empower the powerless and provide a
voice for the voiceless. These values must not be
denied by the victors and the powerful in seeking
to impose their values on others.
In the
21st century the ideology of "an eye for an eye",
recognized as the law of retaliation, must be
avoided. The practice of frontier justice is
unacceptable in a civilized society. Otherwise the
very essence of the legal instruments, regulations
and conventions that took centuries for the
world's communities to develop at national and
international level will lose all credibility.
Professor Ackerman points out that
democracy, individual rights, legitimacy,
accountability and the rule of law all point to
the need in emergency to avoid extreme measures.
Be it war or terrorism, the rule of law must be
supreme, as neither safety nor freedom can be
achieved if security is assured at all costs.
Dr Gyan Basnet who holds a PhD
and an LLM degree in International Human Rights
law at Lancaster University, UK is a researcher in
International Human Rights Law and an Advocate in
the Supreme Court of Nepal.
Speaking Freely is an Asia Times Online
feature that allows guest writers to have their
say.Please
click hereif you are interested in
contributing. Articles submitted for this section
allow our readers to express their opinions and do
not necessarily meet the same editorial standards
of Asia Times Online's regular contributors.
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