Guantanamo detainees remain in legal limbo

By FRANK DAVIES
Knight Ridder Newspapers

WASHINGTON - (KRT) - One year ago, the Supreme Court issued a landmark ruling that opened the door to federal courts for 500-plus prisoners in the Guantanamo Bay prison camp to challenge their captivity.

But 200 detainees, including some held more than three years, who have filed habeas corpus petitions in federal court haven't been able to get through that door. After months of procedural battles, no judge has heard the merits of a single Guantanamo case.

As controversy mounts over the treatment of Guantanamo detainees, and the Bush administration argues that prisoners can be held indefinitely without being charged, even some Republican senators have called for a faster resolution of their cases. <snip>

A habeas corpus petition, in which a prisoner claims he's being improperly jailed, "is supposed to get fast-track consideration because personal liberty is an urgent issue," said Eugene Fidell, president of the National Institute of Military Justice. <snip>

http://www.ledger-enquirer.com/mld/ledgerenquirer/11998772.htm

From the Third Geneva Convention:

Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Neither Mr. Bush nor any member of his cabinet is a competent tribunal. However, since Mr. Bush and Mr. Rumsfeld have exceeded their authority and asserted that these people are "illegal combatants" (a term is not found in the Geneva Conventions) that have no rights whatsoever, they have not permitted a competent tribunal to hear any case involving any detainee, each detainee held in Guantánamo, at least at this moment, is a prisoner of war.

What a competent tribunal would have to rule on in any individual case would be whether that person is a prisoner of war according to the following criteria:

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:<[br />(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:
(1) Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

We can let a tribunal sort out any individual case.

In any event, even were a tribunal to rule that any given detainee at Guantánamo is not a POW, he would still have more rights under the Third and Fourth Geneva Conventions than Mr. Bush, Mr. Rumsfeld and Mr. Gonzales seem willing to admit. The following language is found in both the Third and Fourth conventions:

Art. 2. In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Even if under these provisions, an individual detainee is ruled not to be protected by the Geneva Conventions, all detainee are protected by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That outlaws quite a bit of what Mr. Gonzales approved in his memos to Mr. Bush in 2002 and explicitly outlaws what has come to be called extraordinary rendition.

Overall, we must defer to a tribunal to determine who has what rights in Guantánamo or the other facilities in Mr. Bush's offshore gulag network. In the end, some may be prisoners of war and others not.

However, it is also very likely that Mr. Bush, Mr. Rumsfeld, Mr. Gonzales and other members of the Bush regime are guilty of crimes against humanity. That, too, should be referred to a competent tribunal.

.. the Administration's contemptuous little game of delay and obfuscation ...