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WORD COUNT
634
APRIL 30, 2008
GUANTANAMO HAS GIVEN
US A BAD NAME – by Colleen Garcia and Michele Zilka
Following the
terrorist attacks of September 11, 2001 the United States embarked upon
a global war against an enemy unlike any it had faced before. In
drafting a new strategy to defeat the threat of international terrorism,
the United States adopted several controversial and widely criticized
policies. The Guantanamo Bay detention facility in Cuba is undoubtedly
the most notorious.
The base at
Guantanamo Bay has imprisoned over 750 enemy combatants and suspected
terrorists since 2002. It has come under significant international
scrutiny due to reports of detainees being held without charge,
receiving unfair trials, suffering through questionable interrogation
tactics, and being forcibly relocated to countries with poor human
rights records. Amnesty International has labeled Guantanamo “the gulag
of our times.”
Recent remarks from
five former United States Secretaries of State have opened a much-needed
domestic debate over its status. Colin Powell was joined by Henry
Kissinger, James Baker III, Warren Christopher and Madeleine Albright in
calling for its closure. Declaring the infamous prison a “blot on us,”
the former high-powered government officials argued that the prison
undermines American legitimacy internationally.
Senators John McCain,
Hillary Clinton, and Barack Obama have all called for Guantanamo to be
shut down. The United Nations Committee Against Torture, as well as the
governments of Britain, France and Germany, have also called for the
closure as well. Yet, as of March 2008, approximately 280 detainees were
still being held there.
American legislative
initiatives have added fuel to the fire. Most notably, the Military
Commissions Act, passed in 2006 under the leadership Republican Senator
Mitch McConnell, changed both the definition of “unlawful enemy
combatant” and the rights afforded to Guantanamo detainees.
Under international
humanitarian law, “unlawful enemy combatant” is defined as a person who
directly participates in hostilities. However, the Military Commissions
Act widened the definition to also include any person “who purposefully
and materially supported hostilities against the United States or its
co-belligerents who is not a lawful enemy combatant,” as well as any
person designated by a competent tribunal.
Two problems
immediately arise from this change. First, the Military Commissions Act
definition expands the list of possible targets and detainees to include
people who would have been considered civilians under previous law, such
as support personnel on military bases. Second, the law seems to give
the President or Secretary of Defense the authority to designate anyone
an unlawful enemy combatant, as long as they convene a “competent
tribunal” in making that designation.
The major concern
here is the restriction of habeas corpus, the right through which
a person can seek relief from unlawful detention. Under the Military
Commissions Act, Guantanamo Bay detainees cannot file lawsuits
challenging their detention. This is significant, as habeas corpus
is considered a fundamental constitutional right and is granted even to
non-U.S. citizens. Even more alarming, under the broadened definition of
unlawful enemy combatant, the law allows those conventionally defined as
“civilians” to be stripped of their lawful right to habeas corpus.
It is no surprise
then that the Military Commissions Act presents a significant threat to
American legitimacy abroad. Great Britain, one of America’s closest
allies, has already challenged the United States over the fate of Binyan
Mohamed, a British resident the United States is holding indefinitely at
Guantanamo on terrorism-related charges.
In redefining the
laws of war, the United States has overridden long-established
international human rights law enshrined in United Nations detainment
policies. The Military Commissions Act has caused a significant backlash
abroad, alienating U.S. allies in the global war on terror. At a time
when the United States is trying to regain the trust of its allies by
adopting a more multilateral approach, it would be in America’s best
interest to return to the internationally accepted definition of
unlawful enemy combatants and to grant detainees the legal rights
reserved under that definition.
--
Colleen Garcia and
Michele Zilka are researchers at the Center for Arms Control and
Non-Proliferation in Washington, D.C.
Visit the Center online at
www.armscontrolcenter.org.
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