Guantanamo: A Long Prison History


10 years ago, President Bush invaded Afghanistan and opened the Guantanamo Bay Prison. An estimated 800 men were rounded up and shipped to the Cuban enclave. Photos surfaced showing them in orange prison garb with their hands bound, legs shackled, and faces covered with masks. Many were captured based on nothing more than hearsay, often in response to bounties. Some were not involved in any war, but were linked to certain organizations. Most detainees had no history of any hostile act against the U.S.

President Obama pledged in 2008 to close Guantanamo, but the Congress blocked his efforts. He also said in 2009 the detainees would be tried in federal court, but now they appear to be going back to military tribunals. The issue of holding trials in the regular courts, or military tribunals, depends of the status of the prisoners.

The first issue was: are the prisoners civilians or combatants? Civilians are entitled to a trial in a typical criminal court, or an outright release, if there is no evidence against them. Combatants are people who carry arms. They are either lawful or unlawful. Lawful combatants, such as ordinary enemy troops, not accused of any war crimes, may not be put on trial, simply for serving as soldiers. They may be held for the duration of the conflict, but are entitled prisoner-of-war status. Prisoners may be tried in a military tribunal as unlawful combatants, only if they violated one of the Laws of War. If there is doubt as to their classification, they are protected by the Geneva Convention, until their status is determined by a competent judge.

President Bush initially found none of the prisoners were civilians, entitled to a release, or a trial in the regular court system (2002). He declared they were combatants, and more specifically, unlawful combatants, meaning he accused them of war crimes.

Bush issued an Executive Order (2001) ordering all prisoners to be tried by Military Commission, instead of military court-martial or civilian court. He gave the Commission exclusive jurisdiction. He repealed the ordinary rules of law, as he decreed: “It is not practicable to apply in military commissions…the principles of law, and the rules of evidence, generally recognized in the trial of criminal cases in the district courts.” He did not explain why he thought it was necessary to suspend the rights of the accused.

The Defense Dept. issued procedures for the military commissions (2002). The commissioners, prosecutors, and chief defense counsel would be picked by the Dept. Civilian defense lawyers would only be allowed if the Dept. pre-approved. Defense lawyers could be excluded from the hearings, if the Pentagon felt national security was at risk. Hearings were to be conducted in secret and closed to the media. Even the accused could be excluded from the room. He could see only that evidence the military allowed him to see. There would be no right to a speedy trial.  There would be no remedy or appeal: “in any court of the U.S., or any State thereof, or any court of a foreign nation, or any international tribunal.”

When the Pentagon filed their first charges (2004), prisoners filed Habeas Corpus petitions in the federal courts challenging Bush’s military system. In Hamdi v Rumsfeld (2004), Bush argued Hamdi was a combatant and could be held indefinitely, without charge. Hamdi said he was an innocent U.S. civilian, effectively serving a life sentence. The Supreme Court ruled the prisoner had a due process right to contest his status as a combatant.

Bush then created a Combatant Status Review Tribunals (2004) to determine if detainees were properly classified. Panels of military officers reviewed each case. They defined combatants as members of the Taliban, al-Qaeda, or other associated forces. After their reviews, they found some prisoners were not in fact combatants, but they continued to hold them anyway (2005).

Meanwhile, Congress passed the Detainee Treatment Act (2005), which attempted to override Hamdi, by denying Guantanamo prisoners Habeas Corpus petitions. That law was challenged in Hamdan v Rumsfeld (2006), along with Commission procedures, and the type of war crimes that could be prosecuted. The Supreme Court held Congress could not outlaw Habeas Corpus petitions. Procedurally, Hamdan did not want to be tried by Bush’s Commission. He instead wanted a trial in a military court-martial, where the Uniform Code of Military Justice would be applied. The Court agreed and ordered the use of courts-martial rules. As to the substantive charges, Hamdan was accused of conspiracy, but no specific act of wrongdoing. He argued conspiracy, by itself, is not a violation of the Laws of War. The Court agreed saying, the offense must violate the Laws of War, and conspiracy, in and of itself, does not appear in the Hague Conventions or the Geneva Conventions. They also said violations of the Laws of War happen during war, and cannot pre-date the conflict. The Court concluded none of the acts Hamden was alleged to have committed violated any of the Laws of War. After the Supreme Court ruling, a Republican-controlled Congress responded by passing the Military Commissions Act (2006), which again suspended Habeas Corpus, and resurrected Commission rules.

It’s time to be done with Guantanamo. Long ago, the Americans were right as they liberated Cuba and Guantanamo from Spain in the Spanish-American War (1898). The U.S. went wrong when they stayed in Cuba, until the Cubans agreed to lease Guantanamo Bay to the U.S. Navy. The U.S. has now had a lease on Guantanamo since 1903, and it’s time to vacate the premises. The U.S. needs to complete the remaining prisoner cases, close the base, bulldoze the buildings, and give Guantanamo back to Cuba.

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