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Rights Groups Say Gitmoâ€TMs ‘Legal Black Holeâ€TM Creates Security Pro

by Catriona Stuart
Jessica Azulay contributed to this piece.

In response to reports that some former Guantánamo detainees have taken up arms, human rights organizations say adherence to int’l law would make US safer.

Dec. 8, 2004 – As court battles over the legal status of the detainees held in the US Military camp at Guantánamo Bay, Cuba persist, human rights groups continue to press the Pentagon to reclassify the prisoners according to international law.

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The Pentagon has said that its current system is designed to keep Taliban and Al-Qaeda fighters from returning to violence and points to recent reports alleging that at least ten of the over 200 detainees released from the Guantánamo Bay prison have taken up arms after returning to their countries of origin.

Rights groups, while questioning the accuracy of this information, reassert their opposition to the controversial US detention policy for Guantánamo prisoners and say that security concerns would be better served by adherence to international law.

From the beginning of hostilities, human rights organizations worldwide have voiced sharp criticism over Washington’s refusal to classify eligible captives taken in the war on Afghanistan as "prisoners of war," and have been outspoken against the prolonged detentions at Guantánamo. But demands on the Pentagon to release, or at least provide fair hearings to, the "Gitmo" detainees have increased in recent months, since the Supreme Court ruled in June that alleged terrorists could not be held indefinitely in a "legal black hole" just outside the US border.

"The pressure that human rights groups are putting on the Pentagon is that they have to hold people according to the law," said Michael Ratner, director of the Center for Constitutional Rights, in an interview with The NewStandard.

If the US had chosen to follow international law standards when capturing people on the battlefield in Afghanistan, it would be in a much stronger position now when seeking to hold prisoners and try them for suspected war crimes or international terrorism.

While the Pentagon has stepped up the release of Guantánamo prisoners, some of whom have been held upwards of two years without communicating with a lawyer or with their families, spokespeople for the military maintain that that they have mistakenly released some known terrorists and Taliban fighter because of the inherent difficulties in determining who should be freed. Supporters of the government’s detainment policy say the recent reports justify the unprecedented indefinite jail terms for alleged terrorists and Taliban fighters.

But some human rights organizations question the validity of the information in the media, which largely based on the word anonymous government officials. "There’s no way of assessing the validity of these assertions, and the history of the Pentagon suggests that skepticism is warranted," Jamie Fellner, director of the US Program at Human Rights Watch told The NewStandard.

Despite skepticism within the human rights community, reporters have tried to independently verify a few cases in which former Gitmo detainees have turned up on the battlefield in Afghanistan or engaged in terrorism in Pakistan.

The latest case, according to the Washington Post, is that of 29-year-old Abdullah Mehsud, a former Taliban fighter, who spent two years in the Guantánamo Bay prison after being captured in Afghanistan in 2002. The Post reports that after his release, Mehsud bragged to reporters about how, while incarcerated, he carefully concealed his Pakistani citizenship as well as his deep connections to militant forces in both countries and maintained that he was an innocent Afghan tribesman.

Mehsud claims responsibility for the recent kidnapping of two Chinese engineers working on a dam project in Waziristan, a Pakistani region bordering Afghanistan.

The Washington Post article also details, with varying degrees of concrete sourcing, several other stories, including that of an unnamed Afghan teenager who had spent two years in a special youth compound at Guantánamo, where he learned English, played sports and watched videos. The young man, after vowing to quit violence, was released only to be recaptured with Taliban forces near Kandahar, Afghanistan.

It is unclear from news reports on the topic whether all the former detainees alleged to have picked up arms or engaged in terrorism since their release are doing so as returnees to violence or as first timers.

Pentagon spokesperson US Navy Lieutenant Commander, Alvin "Flex" Plexico told The NewStandard, "We have said many times that we do not wish to hold detainees any longer than necessary, but the process of releasing [them] is not without risks and includes a long but necessary process to help balance the risks."

While feeding bits of the story to the press, Pentagon sources have failed to answer further questions from The NewStandard about the specifics of the majority of the cases. Also unexplained is how US officials, who have been so stingy in the numbers of detainees they are willing to release, could have made such flagrant mistakes.

Plexico, who would only agree to an email interview, repeatedly refused to reply to questions about the process by which the military determines who to release or about how the military can assert with assuredness that the detainees in question were previously involved with Taliban or terrorist organizations, rather than choosing to join such groups post-release, perhaps as a result of their detention by the United States.

In spite of the ambiguity, David Rivkin, a former Regan and Bush administration official and partner in the Washington law firm of Baker & Hostetler, told The NewStandard that the release of these men, "underscores how wrong the critics were." Rivkin, who supports the government’s current detention policy, does not believe that the Pentagon should currently have to release any of the Guantánamo prisoners and should play it safe.

"The safest posture is to keep them under lock and key until hostilities are over," he said.

Legal and advocacy groups agree in part. Ratner, of the Center for Constitutional Rights, explains that under international law, combatants captured on the battlefield who are properly classified as "prisoners of war" can legally be held until the end of a conflict.

Ratner asserts, however, that the international conflict with the Taliban is over and that any prisoner who should have been classified as a prisoner of war from the Afghanistan conflict must be released in accordance with international law.

Ratner’s belief is shared by James Ross, senior legal analyst at Human Rights Watch, who said that in his opinion, the current conflict in Afghanistan is a civil war in which the Taliban and other rebel forces are fighting against the Afghanistan government, and that the US is acting on behalf and at the behest of the Karzai government.

Ross said that anyone detained for fighting alongside or in the Taliban after Karzai took power could be tried in Afghanistan for violating that country’s laws. But many of those detained fighting a foreign military during the invasion and occupation of Afghanistan have not violated international law, Ross insists. The US is authorized to hold them in an internment camp, but they must be treated humanely and released when the conflict is over.

On the other hand, anyone who is suspected of engaging in international terrorism or committing war crimes, said Ross, would be given a separate distinction and different rules would apply to their detainment and trial.

Both Ratner and Ross acknowledge that there is disagreement, mainly with the Bush administration, over whether the international conflict is over, but that does not mean the prisoner of war classification is just a matter of semantics.

To use the term "prisoner of war," says Ratner, entails that fighters have been separated from noncombatants, and that all detainees are guaranteed the rights afforded them in the Geneva Conventions.

The US, however, has failed to meet these basic wartime standards. In an unprecedented move, the US has refused to conduct on-the-spot battlefield status determinations. As a result, Guantánamo does hold alleged Taliban and Al-Qaeda fighters, Ratner said, "but it also holds Pakistanis in civilian clothes who have never even touched a gun."

According to Ross, if the US had chosen to follow international law standards when capturing people on the battlefield in Afghanistan, it would be in a much stronger position now when seeking to hold prisoners and try them for suspected war crimes or international terrorism.

Instead, Ross points out, the US has chosen a completely different route, one in which it claims no laws apply to the detainees held at Guantánamo.

This, the administration’s critics claim, is how the US wound up in the difficult position of having to defend its policy before the world as well as in US civilian courts. Although international law has extensive rules for how governments and armies can handle detainees fairly while providing for security from dangerous and violent individuals, the US has wandered into uncharted territory replete with contradictions, international outrage and human rights abuses.

Corin Redgrave, founder of the Guantánamo Human Rights Commission, commented to The NewStandard that "No government -- not even the British government -- accepts the imprisonment of detainees without trial, and without benefit of Geneva Convention rights, as lawful."

But administration supporters like Rivkin criticize human rights groups’ demands on the government, and consider detractors’ reasoning to be flawed. According to Rivkind, such groups’ problem amounts to a "fundamental failure to distinguish criminal justice norms from wartime reality… Human rights groups want a process that is so laborious, so judicious, that this would revert to a peacetime criminal justice procedure."

But Ross of Human Rights Watch begs to differ. "The actual requirements of international law are not so onerous and would not have limited the US in any way," he said.

Ask how he would respond to Rivkind’s criticism, Ratner said, "Every single person deserves some kind of hearing before a fair tribunal and people who are alleged to be criminals deserve a criminal trial."

Additionally, some human rights activists assert that violating accepted standards will only worsen the situation. "By holding approximately 600 detainees indefinitely without charge, in defiance of the law, the US will create terrorists by the score," said Redgrave of the Guantánamo Human Rights Commission.

"The bottom line," said Stephen MacPherson Watt of the Center for Constitutional Rights, "is we don’t want these individuals rejoining the fight, or joining the fight for the first time."

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The NewStandard ceased publishing on April 27, 2007.

Catriona Stuart is a contributing journalist.

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