Time to rethink strategy on Guantanamo Bay
More than two years after the United States chose Guantanamo Bay, Cuba, as the location of its detention camp for terror suspects captured during fighting in Afghanistan, the first of those suspects, an Australian citizen, has been allowed to see a lawyer. Similar access for other prisoners could be coming as challenges over the treatment of the detainees make their way through the American judicial system.
In two rulings this week, courts said that the detention of an American citizen as an enemy combatant was illegal and that the detainees cannot be held indefinitely without judicial review. This is by no means the end of the story, as the Supreme Court is expected to have the final say on both cases.
The US argument is that the war on terror is unique from conventional combat and therefore accepted practices for providing due process to wartime enemies have to be bent or scrapped. The recent rulings would indicate that American judicial opinion may well be tipping in favour of the view that such rules do still apply and that Guantanamo, while not US soil, is still subject to American laws on due process.
The lawyer for David Hicks, the Australian detainee, this week described his client's circumstances in Guantanamo as a 'judicial and physical black hole'. The US has so far refused to even name most of the more than 600 being held at the naval base. The recent rulings and the impending case reviews by the Supreme Court will have one important effect: hastening the resolution of the fate of the detainees, who have been in limbo for long enough. If there is evidence that detainees were involved in terror plots or could be material witnesses in such cases, formal charges need to be brought.
Indefinite detention without charges or access to representation is eroding the credibility of the American war on terror and, by extension, its efforts in the Middle East. Resolving the questions over Guantanamo may have the added effect of removing the Arab world's scepticism over American intentions in Iraq, Afghanistan and the region as a whole.
There are comparisons already being made between the way recently captured Saddam Hussein is being treated and the rights extended to prisoners at Guantanamo. Hussein is being treated as a prisoner of war under the Geneva Conventions even though he has yet to be declared one. Iraqis and the rest of the world are watching to see that any court trying Hussein applies international legal standards and not just the logic of victor's justice.
Denying similar rights to the Guantanamo prisoners does not seem to have curbed terror attacks or insurgent activities targeting the US and its allies. Neither has it deterred a regrouping of the Taleban in Afghanistan. The strategy is in urgent need of review.
