by John M. Curtis
(310) 204-8700

Copyright December 3, 2002
All Rights Reserved.

eclaring Taliban prisoners and other foreign captives "enemy combatants," the Bush administration sought to deny access to the Geneva Convention—the bill of rights for prisoners of war. Without invoking the Geneva Convention, detainees are subject to unrestricted interrogation and indefinite confinement, something badly needed in the wake of Sept 11 and the most egregious breakdown in national security in U.S. history. Since taking more than 500 captives, the U.S. faces some tough questions, not only about the rule of law but about what is right. "We have no court in the world that may hear from my clients," said Joe Marguilies, an attorney representing 16 captives from Australia, Britain and Kuwait detained as "enemy combatants" at the U.S. Navy base in Cuba. "Our clients have been held incommunicado since Decembers and held in Guantanamo since January," pleading his case before an unsympathetic federal appeals court.

      According to U.S. District Court Judge Colleen Kollar-Kotelly, U.S. courts have no jurisdiction in Guantanamo Bay over habeas corpus [the right to petition a court]. Kollar-Kotelly based her ruling on a 1950 Supreme Court case denying habeas corpus to German prisoners facing military tribunals in China after World War II. Gunatanomo detainees are "identical" to German nationals incarcerated at Landsberg prison in Germany, said Deputy Solicitor General Paula Clement, forgetting that the German soldiers captured in China got their day in court before shipping out to Landsberg. Because soldiers captured in Afghanistan had no recognizable uniform or identifiable logo, the U.S. wouldn't grant prisoner of war status, entitling captives protections under the Geneva Convention. Playing with semantics doesn't change the reality that Afghan and foreign soldiers fought for the Taliban.

      Under the constitution, it's not up to the government to find clever ways to evade or deny due process. Arguing that captives aren't really prisoners of war and therefore not entitled to protections afforded by the Geneva Convention minces words and begs the question. Ruling, as Judges Williams and Randolf did three years ago, that foreigners without property or presence in the U.S. have no constitutional rights breaches the spirit of the law. If the constitution protects the homeless, whether at home or abroad, citizens or aliens, then it also protects battlefield detainees. Calling prisoners of war "enemy combatants" also doesn't materially change basic rights by crafting clever definitions. Seeking "the most modest of rights . . .we want access to an impartial tribunal," said Thomas Wilner, an attorney for 16 detainees at Guantanamo Bay. Arguing that Guantanamo Bay is under Cuban sovereignty, despite U.S. control, doesn't give the courts license to ignore due process or sidestep the rule of law.

      Calling up images of Soviet gulags and denying Guantanamo prisoners—or, for that matter, other detainees in the war on terrorism—access to the "rule of law" sends a cavalier message to the world community. Long the champion of civil and human rights, the U.S. can't apply its own version of vigilante justice. Whether prisoners are housed inside or outside U.S. territory, or whether they're called "enemy combatants" or "prisoner of war," doesn't change the spirit of the law under the U.S. system. If serial killers, rapists and child molesters get access to the courts, so should foreign detainees called "enemy combatants." Morality, ethics and values don't disappear when U.S. citizens cross borders, count change in bank accounts or weigh clear and present dangers. Whether at home or abroad, or applied to undocumented aliens or U.S. citizens, the rule of law must apply equally to all.

      Despite egregious abuses during World War II, Japanese Americans still got access to the courts. Even the 1798 Alien and Sedition Acts, while compromising some civil liberties, were designed to protect U.S. sovereignty from foreigners, especially the French, threatening rebellion. Since Sept. 11, The Patriot Act compromised certain civil protections to enable law enforcement to better chase down foreign terrorists. Getting the courts off the back of law enforcement streamlines criminal investigation, aids prosecution and helps preemption, but shouldn't turn the rule of law on its head. Holding Guantanamo detainees for either intelligence or because they represent an ongoing threat doesn't justify suspending all legal rights. No human being in U.S. custody—for whatever rationale—should be denied access to the rule law. Whether the constitution applies or not shouldn't be the pretext for abandoning all common sense.

      No legal argument or rationale justifies caging human beings like animals, despite giving them toothbrushes or prayer mats. Camp X-Ray is a disgrace to American decency, denying prisoners access to the rule of law. Wire cages, with roofs or not, don't constitute acceptable detention facilities, regardless of whether detainees deserve better conditions. After all the interrogation, no low-level combatant represents a useful source of intelligence or an ongoing threat to national security. With the war on terrorism currently open-ended, it's unrealistic to hold captives indefinitely without at least making them prisoners of war. Calling them "battlefield detainees" or "enemy combatants" doesn't change their real status. Camp X-Ray remains a black eye to U.S. foreign policy and prestige. Before the U.S. can reclaim its moral authority in the war on terror, it must reassess prisoners' rights at Guantanamo Bay. Pretending that the rule of law doesn't apply only makes matters worse.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's a consultant and expert in strategic communication. He's author of Dodging The Bullet and Operation Charisma.

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