Trials the only reasonable step for Guantanamo detainees

November 26, 9:20 AMCivil Liberties ExaminerJ.D. Tuccille

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Guantanamo detainees

In defense of the detention center at Guantanamo Bay and the treatment of prisoners there, Charlotte Law & Civil Rights Examiner Michael A. DeVine writes:

POWs have never before had access to military, much less civilian courts, even for war crimes trials, much less habeas proceedings to determine status, and the Boumediene Supreme Court acknowledged that the procedures in place were superior to those used in past U.S. military tribunals and those used at Nuremburg.

Leave aside DeVine's argument that we're actually at war. Let's take it as a given that we are at war against ... somebody (though I think Political Issues Examiner Judah Freed has a few interesting words to say on that subject).

So we'll say that DeVine made a good start. Now at least we know that the detainees at Guantanamo Bay are prisoners of war, due all the legal protections accorded by the Geneva Conventions -- in particular, the third convention, regarding the treatment of POWs.

But ... I wish somebody would tell the Bush administration. President Bush issued an order in 2002, denying prisoner-of-war status to detainees. The protections of the third convention were specifically withheld from the prisoners.

And I wouldn't look to the incoming administration for formal POW status. In 2002, Attorney-General-to-be Eric Holder told CNN:

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.

But the detainees were also denied the protections of the U.S. criminal courts and the military courts. So they're not prisoners of war, according to the government, but they also haven't been criminals awaiting trial. They've just been ... behind bars with little recourse until the courts themselves ordered otherwise.

Which might explain the extensive abuse to which the detainees have been subject at Guantanamo, where the FBI reported, "On several occasions witnesses saw detainees in interrogation rooms chained hand and foot in fetal position to floor with no chair/food/water; most urinated or defecated on selves and were left there 18, 24 hours or more."

Even worse treatment was inflicted on prisoners at Bagram, far from the public eye. According to McClatchy Newspapers, "The guards kicked, kneed and punched many of the men until they collapsed in pain. U.S. troops shackled and dragged other detainees to small isolation rooms, then hung them by their wrists from chains dangling from the wire mesh ceiling."

In legal limbo, with no specific rights, detainees convicted of no crimes were treated as if they were punching bags. Little wonder then that prosecutors including the chief prosecutor have resigned or refused to pursue cases at Guanatanamo Bay -- even if DeVine dismisses them as "a few military JAG lawyers" who "should come home to practice law and quit playing soldier."

And little wonder that courts have ordered the release of detainees held on little or no evidence, without charges, for extended periods of time.

So prisoner of war status is out, and neither fish nor fowl legal status doesn't seem to have worked out so well -- especially since the courts have made it clear that they've lost patience with the indefinite detention of prisoners of uncertain status.

Under the circumstances, President-Elect Barack Obama's plan to bring the detainees to the United States for long-delayed trials of some sort to determine their guilt or innocence sounds like a reasonable step -- one for which there really is no alternative.

Contact J.D.: civilliberties (at) tuccille.com