By Colleen Garcia and Michele Zilka
Published in the Northwest Arkansas Times on May 1, 2008
Following the terrorist attacks of Sept. 11, 2001 the United States embarked upon a global war against an enemy unlike any it had faced before. In drafting a new strategy to defeat the threat of international terrorism, the United States adopted several controversial and widely criticized policies. The Guantanamo Bay detention facility in Cuba is undoubtedly the most notorious.
The base at Guantanamo Bay has imprisoned over 750 enemy combatants and suspected terrorists since 2002. It has come under significant international scrutiny due to reports of detainees being held without charge, receiving unfair trials, suffering through questionable interrogation tactics, and being forcibly relocated to countries with poor human rights records. Amnesty International has labeled Guantanamo “the gulag of our times.”
Recent remarks from five former U. S. Secretaries of State have opened a much-needed domestic debate over its status. Colin Powell was joined by Henry Kissinger, James Baker III, Warren Christopher and Madeleine Albright in calling for its closure. Declaring the infamous prison a “blot on us,” the former high-powered government officials argued that the prison undermines American legitimacy internationally.
Senators John McCain, Hillary Clinton, and Barack Obama have all called for Guantanamo to be shut down. The United Nations Committee Against Torture, as well as the governments of Britain, France and Germany, have also called for the closure as well. Yet, as of March 2008, approximately 280 detainees were still being held there.
American legislative initiatives have added fuel to the fire. Most notably, the Military Commissions Act, passed in 2006 under the leadership Republican Senator Mitch McConnell, changed both the definition of “unlawful enemy combatant” and the rights afforded to Guantanamo detainees.
Under international humanitarian law, “unlawful enemy combatant” is defined as a person who directly participates in hostilities. However, the Military Commissions Act widened the definition to also include any person “who purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant,” as well as any person designated by a competent tribunal.
Two problems immediately arise from this change. First, the Military Commissions Act definition expands the list of possible targets and detainees to include people who would have been considered civilians under previous law, such as support personnel on military bases. Second, the law seems to give the president or secretary of defense the authority to designate anyone an unlawful enemy combatant, as long as they convene a “competent tribunal” in making that designation.
The major concern here is the restriction of habeas corpus, the right through which a person can seek relief from unlawful detention. Under the Military Commissions Act, Guantanamo Bay detainees cannot file lawsuits challenging their detention. This is significant, as habeas corpus is considered a fundamental constitutional right and is granted even to non-U. S. citizens. Even more alarming, under the broadened definition of unlawful enemy combatant, the law allows those conventionally defined as “civilians” to be stripped of their lawful right to habeas corpus.
It is no surprise then that the Military Commissions Act presents a significant threat to American legitimacy abroad. Great Britain, one of America’s closest allies, has already challenged the United States over the fate of Binyan Mohamed, a British resident the United States is holding indefinitely at Guantanamo on terrorism-related charges.
In redefining the laws of war, the United States has overridden long-established international human rights law enshrined in United Nations detainment policies. The Military Commissions Act has caused a significant backlash abroad, alienating U. S. allies in the global war on terror. At a time when the United States is trying to regain the trust of its allies by adopting a more multilateral approach, it would be in America’s best interest to return to the internationally accepted definition of unlawful enemy combatants and to grant detainees the legal rights reserved under that definition.
Colleen Garcia and Michele Zilka are researchers at the Center for Arms Control and Non-Proliferation.