US Violates
Geneva Convention at Guantanamo Bay *
An Impeachable Offense
World's Socialist Web Site
(WSWS)
By Richard Phillips
11 March 2002
In an internationally coordinated campaign, Australian,
British and the US lawyers have launched a wide-ranging legal
challenge to the Bush administration's detention of
prisoners captured in Afghanistan and currently being held in
Guantanamo Bay, Cuba. Attorneys representing three of the 300
Camp X-Ray prisoners—David Hicks from Australia and Shafiq
Rasul and Asif Iqbal from Britain—filed a law suit in a US
federal court in Washington on February 22 declaring that their
clients were being held illegally and in violation of US and
international legal conventions.
The litigation is being conducted as a petition for a writ of
habeas corpus, that is, a request by a person in custody for a
court to examine the fairness of his or her imprisonment. It
names US President George W. Bush, Secretary of Defense Donald
Rumsfeld and two senior officials from the Guantanamo Bay naval
base—Brigadier General Michael Lehnert and Colonel Terry
Carrico—as respondents.
The lawyers want the US Federal Court to order the release of
the three detainees from unlawful custody and to grant them the
right to legal counsel in private and unmonitored discussions
with their attorneys. The attorneys have also called on the US
military to cease all interrogations, direct or indirect, while
the litigation is pending. Most importantly, the Federal Court is
being asked to declare Bush's November 13 Military Order,
under which the detainees are being held, unlawful and in
violation of the US Constitution and other domestic and
international legal conventions.
Lawyers Joseph Margulies of Minneapolis, Michael Ratner from
the New York-based Centre for Constitutional Rights and Stephen
Kenny from South Australia, are representing 26-year-old David
Hicks. They were appointed at the request of David's
father, Terry Hicks. Asif Iqbal and Shafiq Rasul are represented
by New Orleans attorney Clive Stafford-Smith and London-based
lawyer Gareth Pierce. Iqbal, who is only 20-years-old, and
24-year-old Shafiq Rasul are from Tipton, West Midlands, in
England, the children of Pakistani immigrants.
A joint press statement by the detainees' lawyers
declared: "The core contention of the litigation is that
the United States cannot order indefinite detention without due
process. The detainees have the right to challenge the legality
of their detention in court.'
Joseph Margulies told reporters: "There are few
principles more firmly established in our law than the
prohibition against arbitrary, indefinite detention. The
President of the United States and the executive branch simply
cannot hold a person for the rest of his life, without legal
process, without judicial review, without being charged and
without counsel, particularly when the possible outcome [is] the
imposition of the death penalty.'
South Australian lawyer, Stephen Kenny, said the legal action
was in response to "a clear violation of an
individual's human rights.' "If David Hicks has
broken any laws,' Kenny told the World Socialist Web Site,
"he should be charged and given the opportunity to defend
those charges. But after three months' imprisonment he
hasn't been charged with anything. Much as Rumsfeld might
want, we don't have rules that allow you to be imprisoned
simply because the government or one of its allies doesn't
like you.'
Clive Stafford-Smith, one of the two lawyers representing
Iqbal and Rasul, is a member of the Louisiana Crisis Assistance
Centre, which provides legal representation to death-row
prisoners. He said the detainees should be given the same
legislative rights as John Walker Lindh, who is being tried in a
US civil court. "The argument that people held in
Guantanamo Bay have no rights means [the government] could just
take out a gun and shoot them. We are asking that citizens of the
United States' closest ally receive the same treatment as
Americans,' he said.
The legal case
The legal documents explain that Hicks was captured in
Afghanistan on December 9 by Northern Alliance troops fighting
the Taliban and handed over to the US military on December 14.
After being interrogated by the US military and Australian
Federal Police he was transferred on January 12 to Guantanamo
Bay. The US military has provided no information whatsoever about
when or where Iqbal and Rasul were captured. Mohammed Iqbal, Asif
Iqbal's father, and Skina Basil, Shafiq Rasul's
mother, were not contacted by the British Foreign Office until
January 21, when they were informed that their sons were being
detained at Camp X-Ray.
The petition's Statement of Facts declares that the
detainees had no involvement—"direct or
indirect'—in the September 11 terrorist attacks
against the US or "any act of terrorism attributed by the
US to Al Qaeda or any other terrorist group'. Nor did they,
prior to their capture in December, attempt to cause any harm to
American personnel. Their detention, the litigation states, is
therefore illegal under the September 18, 2001 Joint Resolution
of Congress authorising Bush to "use force against nations,
organisations or persons' that planned or abetted the
September 11 terrorist attacks. The Joint Resolution, the
petition says, "did not authorise the indefinite detention
of persons seized on the field of battle'.
The legal action, the first direct challenge to US President
Bush's November 13 Military Order, declares that the order
is illegal on several grounds: it was not authorised or directed
by Congress; is beyond the scope of the Joint Resolution on
September 18; and by disallowing any legal challenge violates
Article I of the US Constitution and international human rights
laws.
"The Military Order,' the litigation explains,
"vests the President with complete discretion to identify
the individuals that fall within its scope. It establishes no
standards governing the use of his discretion. Once a person has
been detained, the Order contains no provisions for him to be
notified of the charges he may face. On the contrary, the Order
authorises detainees to be held without charges. It contains no
provision for detainees to be notified of their rights under
domestic and international law, and provides neither the right to
counsel, nor the right to consular access. It provides no right
to appear before a neutral tribunal to review the legality of
detainees' continued detention, and no provision for appeal
to an Article III court. In fact, the Order expressly bars review
by any court. Though the Order directs respondent Rumsfeld to
create military tribunals, it sets no deadline for his task. And
for those detainees who will not be tried before a tribunal, the
Order authorises indefinite and unreviewable detention, based on
nothing more than the President's written determination
that an individual is subject to its terms.'
The petition says that since gaining control of the detainees,
"the United States military has held them virtually
incommunicado. They have been, or will be, interrogated
repeatedly by agents of the United States Departments of Defense
and Justice, though they have not been charged with an offense,
nor have they been notified of any pending or contemplated
charges. They have made no appearance before either a military or
civilian tribunal of any sort, nor have they been provided
counsel or the means to contact counsel. They have not been
informed of their rights under the United States Constitution,
the regulations of the United States Military, the Geneva
Convention, the International Covenant on Civil and Political
Rights, or the American Declaration on the Rights and Duties of
Man. Indeed, the respondents have taken the position that the
detainees should not be told of these rights. As a result, the
detained petitioners are completely unable either to protect, or
to vindicate, their rights under domestic or international
law.'
As evidence, the lawsuit establishes that the only
communications allowed between the prisoners and their families
since they were captured were a brief letter from David Hicks to
his father asking for legal assistance; a US government summary
of a letter written by Rasul to his parents in Britain requesting
a lawyer; and a message from Iqbal to his family through the Red
Cross, when he was detained in Afghanistan. The Hicks, Iqbal and
Rasul families have no idea as to the current condition of their
sons or whether they are even aware of the legal action now being
taken on their behalf.
The action charges Bush, Rumsfeld, Lehnert and Carrico with
violating "due process' and "rights of
appeal' clauses in the US Constitution, the Declaration of
Rights and the International Covenant on Civil and Political
Rights. The clauses establish that no one can be "deprived
of life, liberty or property without due process of law,'
including legal representation and appeal rights.
As Article XXV of the Declaration of Rights states:
"Every individual who has been deprived of his liberty has
the right to have the legality of his detention ascertained
without delay by a court, and the right to be tried without undue
delay or, otherwise, to be released. He also has the right to
humane treatment during the time he is in custody.'
The combined Australian-British-US litigation not only
demonstrates that these and other basic rights have been trampled
on by the Bush administration but that the continued detention
without charge of the Camp X-Ray prisoners violates US military
regulations, the US War Powers Clause and the Geneva
Convention.
A ruling on the application is not expected for two to three
weeks. Legal experts say the case will be difficult for the Bush
administration to dismiss because the petitioners are relatives
of the detainees. Last month, a US District Judge in Los Angeles
rejected a civil rights lawsuit by a 17-member coalition of
lawyers, journalists, professors and religious leaders on the
grounds that they had no direct relationship with the detainees.
The judge also ruled that because the prisoners were being held
on Cuban soil, US courts had no sovereignty over them.
The current litigation, which is expected to be the first of a
number of cases brought by relatives of detainees, counters
government claims that US constitutional rights do not apply at
Guantanamo Bay by pointing to the fact that the US has occupied
the area since 1903 and "repeatedly declared its intention
to remain there indefinitely.' Offences committed by
civilians and foreign nationals living in Guantanamo Bay, the
petition states, "are brought before federal courts on the
mainland, where respondents enjoy the full panoply of
Constitutional rights.'
Growing criticism
Public criticism in Britain and Australia is beginning to
mount over the unlawful and inhumane detention of the prisoners.
Last week lawyers acting for Feroz Abbasi, one of the five
British prisoners at Guantanamo Bay, announced they would take
legal action in Britain's High Court against the Blair
Labour government unless it ensured that the detainees were given
legal counsel and other basic rights. The British Law Society and
the Bar Council's human rights committee have written to
Prime Minister Tony Blair demanding that he act to ensure that
the detainees be given access to lawyers.
In Australia, sections of the media have begun to raise
concerns about the treatment of David Hicks. A Sydney Morning
Herald editorial on February 26 called for Hicks to be
repatriated. "The longer Mr Hicks and others in his
position are held without charge, without trial, the greater the
damage to broader freedoms. ... Is it that Mr Hicks's real
threat is to the US version of events in Afghanistan, a challenge
to the validity of George Bush's orders permitting
indefinite detention of foreigners captured in a third country
and their trial by a closed US military tribunal? Mr Hicks should
be dealt with firmly and fairly under Australian law. By failing
to repatriate him so that that can happen, the Australian
Government is complicit in the erosion of civil liberties which
this case is coming to represent,' the newspaper said.
A "Fair Go For David' committee has been
established in South Australia to raise financial and political
support to secure Hicks' release. Trudy Dunn, a
spokesperson for the group now reported to have 8,000 members,
said that despite biased media coverage and the refusal of
Australia's Howard government to demand Hicks' basic
rights, "more and more people are questioning the inhumane
detention and treatment of David.' She said that members of
the group were concerned over the continued interrogation of
Hicks by the US military and warned that "prisoners can be
made to admit anything if the methods of interrogation are
extreme enough and applied over a long period.'
Despite growing international condemnation, the US government
still refuses the Camp X-Ray detainees legal access and is
continuing interrogations in breach of the Geneva Convention. Two
weeks ago Donald Rumsfeld told the US media that the Pentagon was
preparing a "range of options' for the Camp X-Ray
detainees. This included trial by military tribunals, indefinite
detention or return to their native countries. Rumsfeld made
clear, however, that repatriation of any prisoners was
conditional on guarantees that they would be prosecuted at
home.
The Solicitor General Theodore Olson will represent the Bush
administration and the military in the US Federal Court action in
Washington. Olson, whose wife was killed in the September 11
hijack bombings, is a member the Republican Party's extreme
rightwing. He was a key figure in the political conspiracy to
impeach former US President Bill Clinton and played a central
role in the judicial action that handed Bush the presidency in
December 2000, arguing before the US Supreme Court that the
American people had no constitutional right to elect the
president.
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