Aletho News

Rubbing Salt in Guantánamo’s Wounds: Task Force Announces Indefinite Detention

Andy Worthington | 23.1.10

With a stunning lack of sensitivity, Barack Obama’s Guantánamo Task Force chose the anniversary of the President’s failed promise to close the prison to announce its conclusions regarding the eventual fate of the 196 prisoners who are still held, stating, with no trace of irony, that “nearly 50” of the men “should be held indefinitely without trial under the laws of war,” as the Washington Post explained.

The administration’s invocation of the laws of war actually refers to the Authorization for Use of Military Force (AUMF), passed by Congress in the wake of the terrorist attacks on September 11, 2001, which authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” (or those who harbored them), as interpreted by the Supreme Court in June 2004, in Hamdi v. Rumsfeld, in which it was asserted that “Congress has clearly and unmistakably authorized detention” of individuals covered by the AUMF.

This may technically be legal in the United States, but it is at odds with everyone else’s understanding of the laws of war. As every other civilized country understand them, the laws of war involve holding combatants for the duration of hostilities according to the Geneva Conventions, which, under Common Article 3, prohibit the “humiliating and degrading treatment” and coercive interrogations to which the men in Guantánamo were subjected, after President Bush declared in February 2002 that the Geneva Conventions did not apply to al-Qaeda or the Taliban.

Moreover, these men were never screened to ascertain whether they were actually combatants in the first place. Under Article 5 of the Third Geneva Convention (relative to the treatment of prisoners of war), if there is any doubt about whether those detained fit the description of Article 4 (broadly speaking, regular armed forces), they should be treated as Article 4 prisoners until their status has been determined by a competent tribunal. Held close to the time and place of capture, these were convened in every US war from Vietnam onwards, and in the first Gulf War, for example, 1,196 tribunals were held, and 886 men were subsequently released.

However, competent tribunals were not held in Afghanistan (and are still not held to this day, under President Obama), and irregular soldiers (such as those fighting for the Taliban, or military forces related to al-Qaeda who were supporting the Taliban) slipped through the cracks of the protections assured to everyone detained in wartime, whether combatant or civilian, and were labeled as “unlawful enemy combatants,” who, according to the Bush administration, could be deprived of all rights.

This was nonsense, as the International Committee of the Red Cross confirmed in 1958 in a commentary on the Fourth Convention (relative to the treatment of civilians) that “Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or … a member of the medical personnel of the armed forces who is covered by the First Convention.” Moreover, “There is no intermediate status; nobody in enemy hands can be outside the law.”

This interpretation was reinforced by the International Criminal Tribunal for the Former Yugoslavia in a judgment in 1998, but in the “War on Terror,” the result of the Bush administration’s cynical maneuvering was Guantánamo, a prison in which men who had never been adequately screened were presumed to be guilty, even though, in most cases, the authorities knew nothing about them. This was largely because 86 percent of them had not been seized “on the battlefield,” as senior officials claimed, but had been sold to the US military by their Afghan and Pakistani allies, at a time when bounty payments, averaging $5,000 a head, were being paid for al-Qaeda and Taliban suspects.

As a result, the Obama administration’s justification for holding 50 men indefinitely without charge or trial reinforces the Bush administration’s false claim that there is a category of wartime prisoner who can be held indefinitely (as opposed to being held as a prisoner of war until the end of hostilities). What makes this conclusion even more unnerving is that the justification for holding these men indefinitely is evidence that, by President Obama’s own admission, is “tainted” by the use of torture.

In a major national security speech in May, when he first signaled that he was reviving the Bush administration’s justification for holding men indefinitely without charge or trial, President Obama referred to prisoners who “cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.” … Full article

January 23, 2010 - Posted by aletho | Civil Liberties, War Crimes