International Humanitarian Law Guantanamo Bay

Legal Communication – Nicola Sarjeant

International Humanitarian Law – Guantanamo Bay

1. Have you heard of Guantanamo Bay? What and where is it? 2. What are some rights guaranteed by the Geneva Conventions? 3. What are some of the ‘due process’ rights guaranteed in the US Constitution?

Guantanamo Bay detention camp is a military prison and detention camp established at Guantanamo Bay Naval Base in Cuba in January 2002. (Although it is in Cuba, the base is under US jurisdiction.) It holds people accused by the United States government of being terrorists, as well as those no longer considered suspects who are being held pending relocation elsewhere. The detainees held by the United States were classified as "enemy combatants" - a term often criticized for being used in place of "prisoners of war" after President Bush signed a memorandum stating that no Taliban or al-Qaeda detainee will qualify as a prisoner of war and that Article 3 common to the four Geneva Conventions will not apply to them either.

Since the war in Afghanistan (2001–present) approximately 775 detainees have been brought to Guantanamo. As of November 2009, approximately 215 detainees remained at Guantánamo Bay.1

Discuss 1. Why do you think the US decided to put the detainees in Guantanamo Bay? 2. Why would the government not want the detainees to be considered “prisoners of war”? Do you think they should be? Why/why not? Timeline Between 2002 and 2004, friends and family of approximately 200 detainees filed habeas corpus submissions.

Habeas corpus (Latin: You (shall) have the body) is a legal action, or writ, requiring a person to be brought before a judge or into court, especially to investigate the lawfulness of their detention.

In June 2004, Rasul v. Bush was the first habeas corpus submission to reach the United States Supreme Court. The Supreme Court dismissed the argument that the Naval Base at Guantanamo was beyond the reach of US law, and ruled that:  the U.S. court system has the authority to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were wrongfully imprisoned.  the Executive Branch was obliged to provide the captives with an opportunity to hear and attempt to refute whatever evidence had caused them to have been classified as "enemy combatants". As a result the Department of Defense created the Combatant Status Review Tribunals (military tribunals). to refute - to say or prove that a person, statement, opinion, etc. is wrong or false In June 2006, Hamdan v. Rumsfeld, another habeas corpus submission, reached the US Supreme Court. The Supreme Court ruled that:  the Executive Branch lacks the Constitutional authority to set up military tribunals to try captives taken in the "war on terror". The structures and procedures of the military tribunals “violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.  this authority lies with the United States Congress.

In October 2006, the US Congress passed the Military Commissions Act, setting up Military Commissions similar to those that the Executive Branch had set up, retaining most of the features that had concerned critics:  the Commissions could still hear and consider "hearsay evidence".

1 "Guantanamo Bay detention camp." Wikipedia, The Free Encyclopedia. Legal Communication – Nicola Sarjeant

 suspects would still be restricted from attempting to refute, or indeed even learning about, evidence against them that was classified as secret.  evidence extracted from the suspect, or other witnesses, through the use of "extended interrogation techniques", would be permitted, so long as it was extracted prior to the Detainee Treatment Act in late 2005.  all outstanding habeas corpus submissions on behalf of the captives should be quashed. hearsay evidence - evidence that is offered by a witness of which they do not have direct knowledge but, rather, their testimony is based on what others have said to them. – under the Federal Rules of Evidence, most hearsay evidence is inadmissible in court. to quash - to declare s.th. invalid

Discuss 1. What do you think of the government’s response to the Hamdan v. Rumsfeld ruling? 2. Should detainees be entitled to the same due process rights as US citizens? Why/why not?

In June 2008, the Supreme Court ruled on Boumediene v. Bush 2, another writ of habeas corpus submission made in a civilian court of the United States on behalf of Lakhdar Boumediene, a naturalized citizen of Bosnia and Herzegovina, held in military detention at Guantanamo Bay. The case challenged the legality of Boumediene’s detention as well as the constitutionality of the Military Commissions Act (MCA) of 2006. a bounty - payment or reward (especially from a government) for acts such as catching criminals an executive order - an order having the force of law issued by the president of the U.S. to the army, navy, or other part of the executive branch of the government to pass muster - to measure up to a certain standard; be adequate a petition - a formal letter to a court of law requesting a particular legal action to handcuff – to restrain or restrict s.o. from doing s.th. to veer – to suddenly change direction

1. What did the Supreme Court rule in this case3?

2. What rights does Judge Napolitano say people have if they are confined by an American government authority?

3. How does Judge Napolitano explain “habeas corpus”? What right does it give you?

4. Why does “the system” have a problem with habeas corpus rights?

5. What will happen if certain detainees file a petition with a federal judge?

6. What is the practical effect of this ruling on the government?

7. In Judge Napolitano’s opinion, why did America veer so far from the Constitution?

Discuss 1. What do you think of this ruling? 2. Do you agree that it was “a good day” for America? Does it help America’s international image, or is it too late? 3. In January 2009, President Obama said that the Guantanamo detention center would be shut down within a year. However, he has now said that this deadline would be missed as they have discovered that there were no comprehensive files concerning many of the detainees, so that putting together the available evidence about them could take weeks or months. Do you think this is a valid excuse? What do you think he should do? 4. Although some detainees are likely innocent, others are terrorists and need to be held somewhere. Where should they be held? Why?

2 http://en.wikipedia.org/wiki/Boumediene_v._Bush 3 http://www.youtube.com/watch?v=hTWJT3Dwfqo