Monday, April 11, 2005


William Fisher

The U.S. Joint Chiefs of Staff, the military’s most senior leaders, are asking Defense Secretary Donald Rumsfeld to approve new guidelines that will formalize the Bush Administration’s policy of imprisoning ‘enemy combatants’ without the protections of the Geneva Conventions and enable the Pentagon to hold ‘ghost detainees’, a human rights group is charging.

In a letter to Rumsfeld, advocacy group Human Rights Watch (HRW) said, “Denying the protections of the Geneva Conventions to persons apprehended in the global war on terror is unsupported as a matter of law, represents a radical deviation from the standards that have traditionally guided U.S. military operations, and places U.S. service members and civilians detained by enemy forces at greater risk of mistreatment.”

The new memorandum, now in final draft, is known as the “Joint Doctrine for Detainee Operations: Joint Publication 3-63”, March 23, 2005.

The letter to Rumsfeld, signed by HRW Executive Director Kenneth Roth, says if the Defense Department (DOD) acts on the new guidelines “U.S. military personnel may be committing grave breaches of the Geneva Conventions and placing themselves at risk of prosecution for war crimes.”

The organization is critical of the U.S. government’s “decision in January 2002 to disavow the applicability of the Geneva Conventions in the global war on terror and the effective creation of a ‘new category of detainee’ has been at the root of the widespread and serious mistreatment of detainees in Iraq, Afghanistan and at Guantánamo Bay.”

HRW says the new rules “will send a message to the world that the Geneva Conventions are not law, but mere policies that can be changed according to tastes of a particular government. Disregarding fundamental principles will in particular suggest that all provisions of the Conventions are subject to unilateral modification. Whether or not this would affect the behavior of terrorist organizations, it will have a profound impact on future armed conflicts between states and the soldiers and civilians affected by them, including Americans.”

The group urges that the draft to “be modified to conform in full to the requirements of the Geneva Conventions.” It says that “among the most troubling features” are provisions creating a category of detainee, “enemy combatant,” that is denied the protections of the Geneva Conventions; overly broad criteria for designating an ‘enemy combatant’ as anyone who appears on a government list that “contains generalized names and aliases (for instance, ‘Mohammad Zia’ and ‘Abdullah Ahmed) that are shared by tens of thousands of persons worldwide” and including “individuals that may not be affiliated with the listed organizations; the claim that enemy combatants “are still entitled to be treated humanely, subject to military necessity”, while the Geneva Conventions offer no exception for military necessity; and provides a basis for denying access to the International Committee of the Red Cross (ICRC) to all detainees in contravention of the Geneva Conventions. “

The new policies ”include a directive that would allow the military to hold enemy combatants as “ghost detainees,” by denying access to them by the International Committee of the Red Cross,” HRW says.

The letter to Rumsfeld charges that “instead of returning to the legal framework that would have ensured that detainees in U.S. custody would not have been abused, the Department of Defense (DOD) is simply changing the manuals.”

“The Pentagon document has not yet been publicly released, and is set to be submitted to Secretary Rumsfeld for approval on April 16,” HRW says.

On June 28, 2004, the US Supreme Court handed down two decisions related to the detention of 'enemy combatants' at Guantanamo Bay, Cuba. In the first one, 03-6696: Hamdi v. Rumsfeld, the US Supreme Court, held that "although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker."

In the second case, 03-334: Rasul v. Bush, the Supreme Court held, among other things, that "United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay." The US Administration had, prior to the decision, held that, though Guantanamo Bay was leased, run, administered, and controlled by the United States, the land was still effectively Cuban, and that therefore U.S. courts should not have jurisdiction over that tract of Cuban territory.

The DOD then created ‘military tribunals’ to determine which Guantanamo prisoners posed threats to the U.S. These bodies were criticized for denying detainees the most basic due process, including attorney-client confidentiality.

Little information about those held at Guantánamo has been released through official government channels. But stories of 60 or more are spelled out in detail in thousands of pages of transcripts filed in U.S. District Court in Washington, where detainees have filed lawsuits challenging their detentions.

Court documents reviewed by The Associated Press last week are giving dozens of Guantánamo detainees what the Bush administration had sought to keep from public view: identities and voices. The government is holding about 550 terrorist suspects at the U.S. Navy base in Cuba. An additional 214 have been released since the facility opened in January 2002 - some into the custody of their home governments, others freed outright.

In the transcripts, the previously anonymous detainees provide accounts of their imprisonment and impressions of U.S. justice. Some express defiance, others stoic acceptance of their fate.

The detainees appeared last year before military tribunals that, after quick reviews, confirmed their status as "enemy combatants" who could be held indefinitely.

A federal has ruled that the Bush administration must allow prisoners at Guantanamo to contest their detention in U.S. courts, and that concluding that special military reviews established by the Pentagon as an alternative are illegal. She said the approximately 550 men held as "enemy combatants" are entitled to the advice of lawyers and to confront the evidence against them in those proceedings. She ruled that the DOD has largely denied them these "most basic fundamental rights" during the reviews conducted at Guantanamo.

Green's ruling directly conflicts with one issued by another federal court judge, who heard the case of a smaller group of detainees. He wrote that their bid for freedom is supported by "no viable legal theory." The conflict underscored the confusion about how to implement a Supreme Court ruling last summer that gave the detainees the right to contest U.S. accusations and challenge their indefinite detentions. The case will now be heard by higher courts.