Since 9/11, the United States has held prisoners from Iraq, Afghanistan and other terror training sites at the US military base in Guantanamo Bay, Cuba. The number of prisoners was over 700 at its highest point and now is just over 400. Many opponents of the Bush Administration in the United States and around the world believe that the continued detention of the Gitmo detainees is immoral and illegal under US and international law.
Much of the opposition regarding US law focuses on the lack of habeas corpus rights for detainees. Habeas corpus is the right to have a prisoner appear before the court and be shown why he is detained.
There are several problems with applying habeas corpus rights to the Gitmo detainees. They are not US citizens. They were not captured in the United States. They are not prisoners of civilian authorities. The detainees were captured by the US or allied military forces in a foreign country while they were fighting a war even though they were not part of an organized military unit and were not wearing military uniforms. This means that they are not subject to US civilian law and do not have the rights of US citizens. The few detainees who are US citizens would have rights under US law, especially those captured within the US.
Treatment of prisoners-of-war is regulated by the Geneva Convention. During WWII, large numbers of German and Italian prisoners were held in prison camps in the United States. None of these prisoners was given habeas corpus rights and all were held prisoner until the end of the war. Those who were found to be guilty of war crimes were given military trials.
Gitmo detainees do not qualify for prisoner-of-war status under the Geneva Convention, however. Because the detainees were not part of organized military units, they would only be considered POWs in very limited circumstances. The Convention does state that “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” are lawful combatants “provided they carry arms openly and respect the laws and customs of war" (Article 4 of the Third Geneva Convention).
Many of the Gitmo detainees were members of paramilitary groups prior to the Coalition invasions of Afghanistan and Iraq. Many others later became members of militia or terrorist groups much later and had time to organize. This would exclude them from POW status under the Geneva Convention. Articles 5 and 42 of the Fourth Geneva Convention, state that unlawful combatants may be deprived of communication and interned. They may also be tried for their actions.
Some Gitmo prisoners have been paroled and released. Of these, several have been confirmed to have returned to combat in Iraq and Afghanistan. If these parolees are recaptured, their rights under the Geneva Convention are forfeited.
Gitmo prisoners have alleged that while they were US prisoners they were subjected to various methods of torture and harassment. The Geneva Convention stipulates that all prisoners, whether they are lawful or unlawful combatants, should be treated humanely. Torture is also illegal under US law and any Americans who torture prisoners can be and are being prosecuted under the Uniform Code of Military Justice. It must be understood that captured Al Qaeda training manuals instruct captured to terrorists to complain of torture and mistreatment and engage in hunger strikes in order to win propaganda victories in the media. We should understand that when detainees claim they were tortured by US authorities, they are doing exactly as they were taught in the terrorist training camps.
The US Supreme Court ruled in Hamdan vs. Rumsfeld (2004) that the detention of unlawful combatants is legal, but that detainees can challenge their detentions. The Supreme Court also found in Hamdan vs. Rumsfeld (2006) that the Bush Administration’s first attempt at military tribunals for the detainees was uncontitutional and that the Geneval Convention article pertaining to civil wars applied. Congress passed the Military Commissions Act in 2006 to authorize military tribunals for the detainees. The Supreme Court has not yet ruled on Al Odah vs. United States which seeks to apply habeas corpus rights to the detainees and give federal, not military, courts jurisdiction.
The problem with Guantanamo is the perception, due to Al Qaeda propaganda disseminated through the western media, that the detainees are innocent people who are being detained and tortured without regard to US and international law. This is not true. The US detention of prisoners at Guantanamo without habeas corpus rights is legal under US and international law. The prisoners at Guantanamo are dangerous terrorists who would return to combat against US troops if they were released. It is important to keep these prisoners confined until they no longer present a danger to the United States or its allies.
The best solution seems to be to close the prison facility at Guantanamo and house the prisoners at a less publicized location. The prisoners should also face military tribunals to confirm the danger that they pose. The results of the tribunals and the evidence against the detainees should be made public to the maximum extent possible given national security considerations. Shining a light on the process and showing the world how dangerous these terrorists really are can only help the United States retain the moral high ground necessary to win the war on terror.