With the Supreme Court's ruling that the Guantanamo Prison and military tribunals transgress international law, Pierre Loza examines the prospects of the camp's detainees Last June's Hamdan vs Rumsfeld case has placed the Bush administration in quite a predicament. After the United States' Supreme Court decided that the Bush administration lacked the authority to set up military tribunals for "war on terror" suspects, Bush responded by hinting that he would try to win congressional approval to continue these trials. An ex-driver of Osama Bin Ladin, Hamdan is one of 10 Guantanamo detainees facing military tribunals. Hamdan's lawyers hope to push the case into a civilian tribunal or a court martial. These two legal options allow for more open proceedings, as well as the defendants' access to the evidence set out against them. Looked upon as a victory for human rights organisations that have adamantly called for the closure of Guantanamo, the Supreme Court ruled that military tribunals break both the Geneva Convention on the treatment of prisoners and the US code of military justice. "We've welcomed the Supreme Court decision as a good step in reigning in the executive excess," said Amnesty International's London- based researcher, Robert Freer. Like many of his colleagues, Freer hopes that the American president will take a progressive interpretation of the decision, by applying it to all of the US's war on terror detention facilities across the world. Amnesty International has not only been calling for the closure of Guantanamo for more than a year, it has also developed a framework by which the US could close the camp, while complying with international standards. "President Bush signed a military order which provided for trials by military commissions since November 2001. And we've been calling for the cancellation of these military commission trials because they would not be independent and would not meet fair trial standards," said Freer. Guantanamo was also condemned by the European Union last June, after the suicides of three detainees. Called an anomaly by Austrian Foreign Minister Ursula Plassnik and then British Premier, it has also been condemned by the United Nations (UN) Committee Against Torture. "The Committee has also stated that the indefinite detention of detainees without charge is per se in and of itself a violation of the Convention Against Torture," says Freer. The three detainees that committed suicide were among the hunger strikers that were force-fed in the camp. The two Saudis and a Yemeni also left suicide notes that were never disclosed by the US. Many of the camp's some 460 detainees have been incarcerated for more than four years, without being charged or brought to justice. Freer also complains that human rights violations usually come to light through leaks from inside the camp itself, such as the 2003 Mohamed Khatami case. "The investigation shows that this man was subjected to what under international standards would amount to torture, or cruel, inhuman and degrading treatment. And yet nobody has been brought to account for this," said Freer. According to Freer, Secretary Rumsfeld was allegedly involved in "not just the authorisation but in the seeing through of the interrogation of Khatami." The only organisation allowed inside Guantanamo is the International Committee of the Red Cross, thanks to their nondisclosure policy. Amnesty International and UN experts have been denied access due to their policy of making their findings public. "We are told that Khatami is in fairly bad health at present, yet he is reluctant to seek medical or psychological help, because doctors and medical personnel were involved in his original maltreatment," says Freer. Freer acknowledges that the US's stance on Guantanamo has become less rigid more recently. A year ago, the Bush administration simply ridiculed calls for the closure of Guantanamo, while last month, the US president was quoted saying that he would "like to end Guantanamo". "We must not transfer Guantanamo human rights violations elsewhere to appease the international community. All US detentions must be accounted for and fully open to external scrutiny," said Freer. A major blow to the Bush administration's policy came in the Supreme Court's decision that Common Article Three of the Geneva Convention was applicable to Guantanamo detainees. Common Article Three was referred to by the International Court of Justice as one of the elementary principles of humanity, because it links up the necessity of a fair trial with humane treatment. "In a secret memorandum, that was leaked after the Abu Ghraib scandal in 2002, President Bush decided that the Geneva Convention does not apply in the war on terror on Al-Qaeda or Taliban detainees," says Freer. Freer, among others, has called upon the US president to withdraw the memorandum in order to conform to international law and comply with the Supreme Court's decision. The New York-based Centre for Constitutional Rights is among a number of organisations spearheading the legal effort to defend Guantanamo detainees. Although it is not yet clear whether the ruling will make a difference for detainees, Bill Goodman, the centre's legal director, lauded the Supreme Court's decision. "What the Supreme Court said was that these commissions are illegal, in that they are unauthorised by law or the constitution. The president does not have imperative authority to form them," Goodman said. The centre is handling a number of habeas corpus cases, which basically ask the responsible bodies to disclose the reasons behind detainment, while examining the evidence. Among the case's most striking features was that the Supreme Court Justices were very sceptical about claims that the president was allowed to hold people without any charge. President Bush's administration has already thrown a couple of ideas on the table, regarding the passage of legislation on the issue. "They could need the Congress to say that they can go ahead with these trials, basically in the same way they were going ahead before, but at this point it needs to be put into writing for Congress to pass it this time," Goodman said. Although Goodman understands that the law will pass through an exceptionally conservative Congress, he believes there is still hope because a number of conservative members have been moved by the Supreme Court's decision. On the other hand, Goodman fears that the new legislation may simply legalise the process that had been taking place before the Supreme Court's ruling. If the awaited legislation, which is to reach Congress next September, allows tribunals to go on in their previous form, detainees will not be allowed due process. In fact, evidence that has been obtained through coercive interrogation will also be permissible. "If Congress passes such a statute, that may affect the legality of the tribunals, although we still believe it is illegal, even when Congress makes it into a law," says Goodman.
