2The Guantanamo Bay Prisoners
Camp Delta, where the prisoners are held, at Guantanamo Bay is divided into four camps. Camps one, two, and three, are considered maximum security and consist of detainees brought off of the battlefield. Camp four is medium security. There is also Camp Echo which holds prisoners deemed eligible to face a military tribunal. Camp Echo currently holds six men. There are 150 prisoners per camp for a total of 640 prisoners.
Prisoners at Guantanamo are considered unlawful combatants rather then prisoners of war because President Bush says they violated the laws of war laid out in the Geneva convention by not wearing uniforms and other insignia. Article Four of the Geneva Convention defines a lawful combatant as:
(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.
Terrorists do not fulfill items (b), (c), and (d). Terrorists use civilian cover in their operations and do not shy away from using force against civilians, a clear violation of Geneva Convention statutes.
Prisoners at Guantanamo are tried in military tribunals. The tribunals consist of three to seven officers picked by the Pentagon with one presiding officer whose powers are strictly limited: he or she cannot consider defense motions that could result in dismissal of charges. Other panel members will be able to overrule the presiding officer. U.S. officials can close sessions by designating evidence as "protected information", a new legally untested label. Defendants can hire civilian attorneys but they can only work as backups to military lawyers and whenever classified information is discussed, they have to leave the room.
Bush's war powers give him the ability to hold detainees without charging them and without access to U.S. courts for as long as the War on Terrorism lasts. "I believe there has been a gross violation of my human rights, particularly to that right of freedom and innocence until proven guilty," said Mozzam Begg; a British citizen who U.S. officials believe was trained by al-Qaeda to use chemicals and explosives. "I still don't know what crime I am supposed to have committed."(Locy)
Bush's actions are not without precedent: a 1942 ruling known as Ex Parte Quirin held that an unlawful combatant could be tried and detained by a military tribunal. Between May 1945 (Germany's surrender) and August 1945 (Japan's surrender), 21 Germans were caught passing information to the Japanese military on US troop movements. The Germans were tried and convicted by a military tribunal. Later they appealed this decision, but in 1950 the Supreme Court ruled that foreign enemies held outside U.S. territory cannot sue in federal court. Both the Ex Parte Quirin decision of 1942 and Johnson vs. Eisentrager decision of 1945 set a precedent for the detainees at Guantanamo.
Ever further back in history is Lincoln's suspension of Habeas Corpus (the right to appear before a judge before being imprisoned) during the civil war. Art. I, Sec. 9 of the Constitution stated: "The privilege of the writ of habeas corpus shall not be
suspended, unless when in causes of rebellion or invasion of the public safety may require it," but Lincoln was the first to exercise these powers and used them to jail suspected Confederacy sympathizers.
At first glance, the Bush administration has a slam-dunk case. Both Ex Parte Quirin and Johnson vs. Eisentrager seem to provide rock-solid justification for suspending detainees' access to civil courts but neither decision justifies detaining them indefinitely without telling them their charges. Nothing under either decision says that it is okay to hold enemy combatants with no charges filed against them and no trial until the military decides that their release won't impede the war. In both cases, defendants were given a trial, a military trial, yet a trial nonetheless.
Perhaps we should consider the trials of Nazi officials at Nuremberg. The Nuremberg trials set the standard for international law and ruled that an individual could be held responsible for their wartime actions. They were tried in tribunals without juries but they had the right to give unsworn statements at the end of the trial. They also had the right to an attorney of their choosing although they could represent themselves (none chose to) and they had the right present evidence in their own defense and to cross-examine any witnesses against them. (Court TV)
Some argue that we cannot set up a system similar to the Nuremberg trials because the war is over yet but that in its self is a circular argument: we can't charge them and try them until the war is over, but how do we know when the war is over? It's over when we say it is. We cannot in good conscience use such a rickety standard of justice if we are to claim the moral high ground in the War on Terrorism.