A critique of US treatment of prisoners

["Ken Hanly" <khanly@xxxxxxxxxxxxxxx>]

A further point that is not noted in the article: the detainees will be
tried in Cuba. The trial will be on Cuban soil leased in perpetuity to the
US. Those convicted will not have recourse to legal remedies they would have
if tried on US territory. Of course it is a mockery of justice that Cuba
should be bound by an agreement signed by a US supported regime aeons ago.
But mockeries of justice are a US tradition so it is fitting that the
detainees be denied  justice in a territory controlled by the US through a
denial of justice to Cuba.

Cheers, Ken Hanly

Without prejudice
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 American cant
The treatment of al-Qaeda and Taliban prisoners by the United States offends
a sense of justice

Afghanistan - Observer special
Terrorism crisis - Observer special

Peter Beaumont
Sunday January 13, 2002
The Observer

Imagine the scene. A group of alleged Irish terrorists is seized and handed
over to the British Government by a third country. They are held without
access to any lawyers. Some are threatened by interrogating intelligence
officers. They are told that if they don't tell them what they want to know
then they might simply 'disappear'. Some of the men are tortured while being
held in prison and forced into confessing that they are members of a
terrorist organisation.

These men are drugged and bound and then flown out of the country to an
island camp, where lawyers are appointed for them but where the normal
guarantees of defendants' rights do not apply. Those lawyers cannot appeal
for their release - no mechanism exists - nor can they challenge their
extradition or the criteria for it.

In that island camp, they will face an emergency military tribunal that has
the right to kill them. Confronted with these gross violations, the
international media and human rights organisations would rightly be up in
arms in protest.

Yesterday, a group of unidentified men, including a Briton, completed a
journey identical in almost every detail to the one described above.
Manacled, with some sedated, they were chained to their seats in the
aircraft that delivered them. The difference is that this group of 20 men
were alleged terrorists with the Taliban and al-Qaeda and their destination
was the US base at Guantanamo Bay in Cuba. The difference, too, is that what
complaint there has been about their treatment has been curiously muted.

The reality of what is happening to the prisoners of Afghanistan is a
scandal of international proportions. Brutalised, often tortured, these are
men who have been stripped of their most basic rights under international
and US law, rights guaranteed at the International Tribunal in the Hague
even for the alleged architects of the genocide in Yugoslavia and Rwanda.

In a few deft strokes, the administration of President George W. Bush has
dropped a 'daisycutter' not only on the Geneva Conventions, designed to
protect the rights of prisoners of war, but also America's own
constitutional guarantees for defendants.

It is possible, even likely, that many of these people committed terrible
crimes - some many even have had foreknowledge of the attacks of 11
September - but their special treatment presupposes a special guilt.

They are the kind of people, we are assured, after all, by General Richard
B. Myers, US Chief of the Joint Staffs, who are so 'dangerous that they
would gnaw through the hydraulic cables' on their transport plane to bring
it down.

It is a description appropriate to an animal, not to a man.

A few weeks ago, I was in Afghanistan looking for some of these almost
mythically self-destructive creatures. The first man we tried to see was an
elderly Taliban official our fixer had come across at an anti-Taliban base
in the suburbs of the former Taliban stronghold of Kandahar.

When our fixer saw him, he was being beaten slowly and methodically to death
by a local warlord. We reached the camp too late. When we arrived, the man
who had been doing the beating told us that he no longer had any Taliban
prisoners. They had buried some al-Qaeda fighters that day whom they had
killed in the liberation of the city, he told us. We asked again about the
prisoner. He clarified the situation: 'There are no prisoners any longer.'

It was not an isolated incident. Ten days later, I found myself with a group
of Western journalists in the office of the governor of the Third
Directorate prison in Kabul.

Abdul Qayum, a lean and hard-faced man in his fifties, had been promising
for a week to let reporters see his prisoners and check on their conditions.
He told us he was both jailer and the man who leads the interrogations. He
told us, too, that he regarded the Taliban and al-Qaeda as
indistinguishable.

So how, we asked, does he persuade them to confess? 'We ask them in a
friendly and Islamic way to confess their crimes,' he explained to us. 'If
they do not confess, then we use force.'

If one cannot condone this sort of behaviour, perhaps one can understand it
in a virtual state, stripped of its institutions and atomised by two decades
of war. But the role of America and its allies in the maltreatment of the
Taliban and al-Qaeda prisoners defies comprehension.

What is most alarming are the potential consequences of those beaten and
forced confessions in the context of the legal process that has been
constructed for the al-Qaeda prisoners. For the torture, threats and
humiliation of the Taliban and al-Qaeda prisoners in Afghanistan's jails
pale into insignificance before the cynical acrobatics that Geroge Bush's
administration has gone through to strip these prisoners of their most basic
rights to a fair legal process.

Let's start with the Geneva Conventions. Not the obvious stuff like the
proscriptions on summary executions (witnessed across the country as the
Taliban fell), or torture (see above), or the humiliating and degrading
treatment (parading prisoners for the international media), but the niggly
details of legal process.

Details like the proscription on the handing-over of prisoners of war to a
third party that is not a party to the war, which America insists
implausibly to the International Committee for the Red Cross that it is not;
in other words, the US claims that it is merely assisting the anti-Taliban
forces rather than prosecuting a war.

Or the little detail that insists that those prisoners must be tried by
regularly constituted courts, not military tribunals constituted under
emergency powers.

If they are combatants - and prisoners of war - acting under orders, then,
as the US Supreme Court's ex parte Quirin ruling declared in 1942 in the
case of a group of German saboteurs seized in America in the Second World
War, they 'are subject [only] to capture and detention as prisoners of war
by opposing military forces'.

But then, say Mr Bush's advisers, including Attorney-General John Ashcroft
and Defence Secretary Donald Rumsfeld, these aren't prisoners of war. These
are men who fought without uniforms. They bore their weapons in secret for a
criminal organisation without a formal legal command. They are criminals,
they argue, 'unlawful combatants', and therefore not covered by the
protections of the Geneva Conventions.

And there lies the source of the Bush administration's greatest contortions.
For if the prisoners of Guantanamo Bay are not covered by the 'laws of war',
then they are ordinary criminals. And the rights of ordinary - and even
extraordinary - criminals are guaranteed by the US Constitution.

The Sixth Amendment, in case Mr Bush has forgotten, insists that in 'all
criminal prosecutions' in the United States inalienable rights apply. Those
rights include the right to a jury trial, a right underlined by case law in
the US Supreme Court that insists that if the civilian courts are open and
functioning then the armed forces cannot convene a military tribunal to try
offences that fall within the jurisdiction of civilian courts.

So if the prisoners of Guantanamo Bay are not criminals or combatants, what
are they?

They are the examples that America feels it needs to make before the world,
condemned before the fact by their alleged membership of a criminal
association. They are triply damned, one suspects, by their nationality,
religion and the colour of their skins.


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