Although the US Supreme Court overruled the no-law zone in Guantanamo prisoners remain in a legal limbo, writes Faiza Rady Euphoric media stories reported throughout last week that the rule of law was finally and rightfully restored in the United States as a result of the Supreme Court's decisions to uphold prisoners' rights to "due process". Following 9/11 and a three-year legal hiatus, the Bush administration worked hard at flushing prisoners' rights down the drain and curtailing civil liberties. The press even proclaimed that American president George W Bush had suffered his first major legal setback. By and large critics of the "war on terror", including prominent rights activists, contended that the Supreme Court has seriously clobbered the administration. In one of the most contentious cases against the executive -- challenging the designation of "unlawful combatant" as persons ineligible for US rights -- the court ruled that the jurisdiction of American courts extended to the military base in Guantanamo, Cuba, and other extra-territorial bases. The ruling gave the more than 650 Guantanamo detainees at least a modicum of hope that there may be light at the end of the tunnel. Many of the prisoners were captured in Afghanistan in 2001 and 2002 and have been held incommunicado ever since. Denied any form of legal protection, Guantanamo prisoners have been subjected to torture like the Abu Ghraib detainees in Iraq, said Human Rights Watch (HRW). The treatment of Abu Ghraib prisoners, however, slightly differed according to head of Guantanamo interrogations Major General Geoffrey Miller, because "the Geneva Conventions were fully applicable in Iraq -- in contrast to Guantanamo." Approved at the highest level of the Pentagon, and in some cases by Defence Secretary Donald Rumsfeld, torture techniques used in Guantanamo included "limiting prisoners food, denying them clothing, subjecting them to body cavity searches, exposing them to 'sensory assault', depriving them of sleep for as much as 96 hours and shackling them in so- called stress positions." Although "sleep deprivation" and "sensory assault" may sound relatively innocuous to the lay person, both torture techniques may cause severe and irreversible mental disorders. According to Physicians for Human Rights "prolonged periods of sleep deprivation can result in confusion and psychosis, physical symptoms include headaches and dizziness, and chronic disruption of normal sleep patterns." Also, "deprivation of normal sensory stimulations cause debility, impair memory, instill fear and despair, and, in some cases, lead to hallucinations and other psychotic reactions." Besides practising torture in a "controlled environment", Guantanamo guards were given leeway to push prisoners around. HRW reported that Shafiq Rasul and Asif Iqbal reported witnessing a number of physical assaults on detainees. They singled out the beating of Bahraini prisoner Jummah Al- Dousary who, according to their testimony, became "psychiatrically disturbed" following a particularly savage beating. "He was lying on the floor of his cage immediately near to us when a group of eight or nine guards entered his cage. They stomped on his neck, kicking him in the stomach even though he had metal rods there as a result of an operation, and they picked up his head and smashed his face into the floor." Held incommunicado by the US military, the prisoners' deprivation of their legal rights clearly led to torture and abuse -- organised at the highest level of command. Responding as a defendant in the Gherebi vs Bush case (DC 9th Circuit, 18 December 2003), the US government advised the court that it asserts the power "to do with [the prisoners] as it will, when it pleases, without any compliance with any rule of law." The government also informed the attending judge that its position would be the same, even if the charges included torture and murder. Until last week, the Bush administration did not have to worry since their no-law hassle-free zone was backed by US appeal courts. Hence, the 29 June 2004 Supreme Court decision to grant Guantanamo detainees access to the American legal system overturned the 11 March 2003 ruling of a Washington District Court of appeal. This ruling had denied the prisoners' constitutional rights because the judge accepted the government's argument, situating Guantanamo Bay "outside US sovereign territory". "This farcical ruling turned reality on its head," commented political analyst Richard Phillips. Indeed, ever since America began leasing the bay in 1903, it has gained total control over the area -- despite the Cuban government's long-standing objection to the occupation of their island. Moreover, until 9/ 11, US legal control has included the extradition of defendants for crimes committed in Guantanamo. American and foreign defendants were then prosecuted in US courts in Virginia, where they were granted full constitutional and legal rights. Regardless of precedents, the Bush administration made no bones about dumping all legal niceties and defining executive power as absolute in the post-9/11 era. Early on, Defence Secretary Donald Rumsfeld made it clear that the American president had no intentions of sticking to the terms of the Geneva Conventions, or any other domestic or internationally-binding prisoner rights conventions. On the anniversary of 9/11 in 2003, Rumsfeld reiterated his case -- telling the media that Guantanamo prisoners could be held indefinitely, for as long as it takes. "Our interest is not in trying them and letting them out," he said. "During this global war on terror, our interest is in keeping them off the streets, and so that's what's taking place." Have the tables turned with the Supreme Court rulings? Some experts proclaim that the decisions finally cut the president's power down to size. According to the prisoners' defence lawyer, John Gibbons, the justices unequivocally ruled that "the executive branch may not maintain a no-law zone anywhere in the world." Others disagree. Law professor and attorney Elaine Cassel believes that, contrary to appearances, the decisions have not significantly altered the prisoners' legal limbo. "Forget about what the media's talking heads have told you about these three Supreme Court decisions that tested the power of George W Bush. The president won far more than he lost," Cassel said. Although the prisoners can now file a writ of habeas corpus and challenge their detention in court, "so what," asks Cassel. The important thing is what happens on the ground. The prisoners will get a "summary proceedings", their day in court, replete with a cursory reading of their petitions and a short hearing in order to look good on paper, predicts Cassel. But then what? The burden of proving their innocence will rest on them, since the government gets the benefit of the doubt in such cases. The Guantanamo lot will, therefore, have to produce evidence of their innocence -- that they never fought against US forces as members of the Taliban or Al-Qaeda. A slight inconvenience since they will have to provide evidence by subpoenaing credible witnesses from Afghanistan, or elsewhere -- and federal marshalls do not serve subpoenas in Afghanistan. Besides, who will pick up the tab? Meanwhile, suggests Cassel, the prisoners are back to square one.
