Due process remains elusive in extra-territorial US detention centres, writes Faiza Rady How do you go about circumventing a United States Supreme Court ruling like the 28 June decision to grant Guantanamo Bay prisoners the right to challenge their detention in American courts? This is an easy nut to crack, if you happen to be an upper-echelon member of the Bush administration. In the "war on terror" everything is permissible, and even Supreme Court rulings may occasionally be subverted -- if need be. Hence, a little legal window-dressing and a few nice touches here and there will do the trick. After all, Bush administration officials have become old hands at dismissing the rule of law. This holds especially true in the case of Guantanamo, where according to US Defense Secretary Donald Rumsfeld, roughly 600 "hard core, well- trained terrorists" from 40 countries are holed up for the sake of "national security", to safeguard the US coastlines. Needless to say, the US government has denied the "terrorists" any due process. Consequently, rights organisations have blasted Guantanamo as a no-law- zone and a "legal black hole" for the past two years. There have been no hearings to determine the legal status of detainees and no judicial reviews, in the words of Human Rights Watch (HRW) "no legal process at all." Nevertheless, following last month's Supreme Court decision, the no-law- zone appears to be slightly crumbling. While human rights lawyers are filing suits for dozens of prisoners in US federal courts, the Pentagon is scurrying around to push the detainees through so-called military "panels" in order to review each case on an individual basis. Pentagon sources say the panels will allow prisoners to challenge their designation as "enemy combatant" -- a creative designation concocted by the Bush administration to deprive Taliban and Al-Qaeda fighters of prisoner of war (POW) status under the Geneva Conventions. However, according to the terms of the conventions -- to which the US is a signatory -- POWs are defined as enemy soldiers captured by one of the parties to an armed conflict. Thus, soldiers -- serving in 2001 under the Taliban government of Afghanistan, another signatory to the Geneva Conventions -- should unquestionably have been granted POW status. As for Al-Qaeda fighters, their designation is more contentious. Still, they would also be covered by the conventions as militiamen if "they have a responsible command, carry their arms openly, wear uniforms with distinct insignia, or conduct their operations in accordance with the laws and customs of war" (Article 4(A) 2). In case of doubt, Article 5 of the conventions decrees that unless and until a competent tribunal determines whether the detainees are covered by the conventions, they should be given POW status. Accordingly, the US government has clearly broken international law -- first by denying Guantanamo detainees POW status, and then by keeping them in a legal-free- zone. But all this is old hat. Since its post 9/11 inception, the Bush administration has secured itself cozy little extra-judicial niches around the world -- Guantanamo only being the most publicised of the sinister lot. Indeed since the October 2001 war on Afghanistan, the Pentagon has been hard at work maintaining an estimated 20 detention centres in Afghanistan alone. These include the CIA interrogation centre at the Bagram airbase north of Kabul, in addition to other centres scattered around Kandahar, Jalalabad and Asadabad. Conveniently tucked away in the distant Afghan hinterlands, they remain inaccessible to the media and rights organisations -- more so than Guantanamo. But there are other "undisclosed locations" to which US-held prisoners also conveniently "disappeared". High-profile detainees -- like Abu Zubaydah, an alleged senior Al-Qaeda operational planner and potential heir to Bin Laden -- are presumably held in these legal-free-zones. HRW has painstakingly gathered information on 13 such "disappeared" prisoners, who are incarcerated with no access to the Red Cross, no notification to families, no supervision of their treatment -- and in most cases no acknowledgment that they are being held, said HRW. According to the Rome Statute of the International Criminal Court "enforced disappearances" are defined as the "detention or abduction of persons followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law". A definition perfectly tailored to Bush administration-style disappearance operations. Besides "disappearing" detainees, a costly enterprise in terms of labour and capital expenditures, the US government has devised a more cost- effective strategy. They have simply "transferred" captives to friendly countries with suspect human rights records. In this context, HRW quoted an unnamed US officials as saying that detainees were "deliberately moved to countries known for their use of torture to ease constraints on their [American] interrogators." One official was quoted as saying: "we don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletives] out of them." Needless to say, "transfers" also contravene the Geneva Conventions. A rather well-publicised transfer case involved Maher Arar, a Syrian-born Canadian, who transited through JFK Airport in New York in 2002. Following a two-week detention period in New York, Arar was flown to Syria, despite his assertions that he would be tortured by the Syrian authorities. Ten months later Arar was released and repatriated to Canada, where he testified about being beaten and tortured with electrical cables while in Syrian custody. Even closer to home, HRW quotes a May 2004 Swedish TV4 report on the Kalla Fakta Programme as saying that a US government-leased Gulfstream 5 jet airplane transferred two alleged Egyptian terrorists from Sweden to Egypt. There, the two men were detained and tortured in Cairo's notorious Tora Prison. In the absence of Supreme Court rulings on "transfers" and "enforced disappearances" in "undisclosed locations", the Bush administration will presumably continue to operate around legal "black holes" in the Afghan hinterlands. In the meantime, Guantanamo is being groomed for inspection. The brass is preparing air-conditioned hearing rooms in trailers outside Camp Delta, where three officers will rule on whether the detainees qualify as POW or "enemy combatants", some two- and-a-half years after the fact. Moreover, transparency is not exactly the military's forte. The Pentagon said that the panels would be open to public scrutiny, but not just yet -- logistics still have to be worked out. Never mind the frills, due process remains elusive. Still deprived of legal counsel, the detainees will be represented by military officers -- who hardly qualify as objective spokespersons. "This is elaborate window- dressing," said Jeffrey Fogel, legal director of the New York-based Centre for Constitutional Rights. "The Supreme Court ruling requires access to legal representation. This process is an attempt to subvert that ruling and the rule of law."
