I presented a topic entitled 'Legal Lacuna For Guantanamo Detainees: A Battle Between What is Legally Right and Morally Wrong' in Diskusi Syariah dan Undang-Undang USIM. These are some of my readings:
In dealing with the detainees kept at Guantanamo, there are some absence in law which are open to interpretations. The interpretations given may not be in tandem with the spirit of the law, or even contrary to human rights – or there may exist abuse of law for immoral aims – benefiting therefrom.
The whole background of the issue started from, or I’d rather say, had its turning point from the Sept 11 attack on the headquarters of the United States Department of Defence in the national capital region of Pennyslvania and on the WTC in New York.
Immediately after the attack, the UN Security Council issued a resolution –the 1373 Resolution 2001 affirming its unequivocal condemnation of the terrorist attacks and expressing its determination to prevent all such acts. The resolution also affirmed the need to combat by all means threats to international peace and security caused by terrorist acts.
Seven days after the attack, the government of US under the presidency of George W.Bush issued a Joint Resolution (AUMF) – Authorization for use of Military Force which authorized the President to use the US Armed Forces against those responsible for the attacks launched against the US. It was the first time the right of self defence was mentioned, where the resolution renders that it was necessary and appropriate for the US to exercise its rights to self defence to protect the US citizens.
In general, the President is authorized to use all necessary and appropriate force against nations / organizations / persons the President determines planned / authorized / committed / aided the terrorist attack.
Firmly believing that Al-Qaeda was the responsible organization, the US began hunting those connected to prevent from ‘future attack’, if I could quote. And believing also that the Taliban had supported and provided safe haven to the organization, the President ordered the armed forces of U.S to invade Afghanistan. In issuing hostilities, hundreds of individuals were captured and later transferred to Guantanamo Bay at Cuba. Guantanamo Bay is a naval camp in Cuba leased by the U.S government as a detention camp.
The detainees where detained as early as in the year 2001 and were kept indefinitely and has been now nearly 7 years, except for a few who were deported. The detainees were kept without knowing the reason of the detention, the evidence used by the US which caused to the detention and what charge and which court their case will be brought to – something which was uncertain not only to them but also to the government as well.
Being criticized for such uncertainty, the Congress of the US came up with a Military Order : Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism. This Military order is also known as the November 13 Order.
The November 13 order placed its findings that the attack by the international terrorist (including members of al-Qaeda) has created a state of armed conflict, and this justifies the use of the US armed forces. It is stated that if the terrorist are not detected and prevented, mass death , injuries and massive destruction of property may happen. And because of the ability of the US to protect its citizen, as well as its allies, it is as if a responsibility that the US armed forces must be deployed.
Another significant aspect of the November 13 order is that it is necessary for individuals subject to this order to be detained and tried for violations of laws of war or military tribunals and that it is not practicable to apply principles of law and rules of evidence generally applied in the US courts.
The November 13 Order applies only to individuals who is not a US citizen of whom there is reason to believe that he is or was the member of al-Qaeda, or has engaged, abetted, conspired to commit international terrorism and those in the interest of the US that such individual should be subject to this order.
The order provides minimal protection to the detainees – that they will be treated humanely, given adequate food, drinking water, shelter, clothing and medical treatment and allowed free exercise of religion.
This order provides punishment which includes life imprisonment or death.
Next, was the memorandum issued by the White House in Feb 7, 2002 which states the US’s stand on the status of the detainees.
In an armed conflict a person can only be one of either two status; i.e whether he does not involved at all with the war or those who have laid down their arms – he is then considered as a civilian whom rights are protected under the 3rd GC. The 3rd GC in its Common Article 3 stipulates among others that they must not be subject to violence, torture and humiliating and degrading treatment etc
On the other hand, if a person who is a member of armed forces or militias or organized resistance movements, they are also protected by the 4th GC – as POW.
Now, back to the memorandum, the US government declared that
(i) GC does not apply to their conflict with Al-Qaeda in Afghanistan or elsewhere because al-Qaeda is not a High Contracting party.
(ii) However, GC only applies to Taliban – as a de facto government
(iii) That Com.Art 3 does not apply to both al-Qaeda and Taliban because the conflict was international not non-international in character.
(iv) Taliban are unlawful combatants, thus do not qualify as POW
(v) And that Al-Qaeda do not qualify as POW too.
Now, having nearly 500 detainees from at least 35 countries, and having kept for such an indefinite tme, without proper charge , the detainees have urged the US courts to grant Habeas Corpus. The next question which arises is can an alien be given such ‘privilege litigation’ in a US federal courts? The US government argued that it does not extend to aliens in military custody who have no presence in ‘any territory which the US is sovereign”. They put forward the case of Johnson v Esentrager. However the court distinguished the two cases, and based its judgments on merits. The court positively held that ‘the detainees are being held indefinitely without the benefit of any legal proceeding to determine ther status, and that it is the primary reason of Habeas Corpus as a mean to challenge executive detentions especially without trial.
In response to that, the Pentagon established procedures called the CSRT – Combatant Status Review Tribunal to determine the status of the detainees. The tribunal is based on administrative procedures in traditional wars which determined the status of POW. , here to determine that they are not ‘enemy combatant.’ The detainees are however given the opportunity to present reasonably available evidence and witness to prove, but they are not allowed the full access to the govt’s evidence or counsel of ther own choice. The CSRTs are not bound by the rules of evidence and the govt’s evidence is presumed to be “genuine and accurate.” As a result of this CSRT procedures, 520 enemy combatants were declared “enemy combatant”.
The case of Khalid v Bush DDC 2005, was not much of help to the Guantanamo detainees. The court , eventhough ruled that the AUMF contains no geographical boundaries, the state of war does not give a blank check to the president. But at the same time, the court found that the exising international law instrument could not protect the detainees at least for the time being , until an dunless further actions are embarked by the President as a cause of complaint.
Another case in 2005 –In Re Guantanamo Detainee Cases - shocked the US government when Judge Green held that the CSRT doesn’t not meet the standards of justice, when it was the only hope / mean where the detainees could address or defend their detention status. Not only that she contended that evidence may possibly be involuntarily obtained and that the meaning of ‘enemy combatant’ was a loose one.
Because of the inconsistencey of the court’s decision, and some which are not in favor of the government, the Congress passed Detainee Treatment Act 2005 – which revoked court’s jurisdiction to hear application of habeas corpus from aliens. The Supreme Court in the case of Hamdan v Rumsfield in 2006 however declines to accept this strip of power by the government.
Due to that, another act was introduce, this time acknowledging the MC – Military Commisisons Act 2006 which does not only revoke the US courts jurisdiction but disallows the GC to be invoked in any habeas corpus and that the President has the power to interpret the GC provisions. Immediately after the enforcement of the Act, the government filed motions to dismiss all habeas corpus decision.
Thus on the applications of habeas corpus to the US courts, I submit that the government of US have been relying on legal avenues, if not creating legal avenues to continue keeping the detainees, as the war is not yet over. Legally, this may have its standing, but morally, can the perceived fight for rights and justice by the US justify the denial of rights on others, among others and in particular the Guantanamo detainees.
On the issue of Self defence.
Legally, the international law allows the right of self defence under Article 51 of the UN Charter. But the question here is was there an actual imminent threat or danger?
Morally, can the US expand the use of self defence to preemptive self defence?
Morally, can preemptive self defence be invoked to justify the invasion of the US army in Afghanistan, turning the whole picture around – to the use of the defence as a sword when it should be used as a shield?
On the issue of torture.
Legally, the detainees are said to not have the POW status who enjoys protection in the 4th GCPOW.
Morally, does that mean that the detainees have no human rights at all?
Legally, even if POW status cannot be invoked, the law says that no state of war or threat of war can be the justification of torture – in the UN Torture Convention.
Morally, is it right to derogate from the rule?
Legally, the US invoked the doctrine of derogation as mentioned in Art 4 of IICPR and ECHR.
Morally, was the doctrine of derogation used proportionately?
Morally, does the necessity of derogation exist?
Conclusion
With all the points delivered, I submit and support several suggestions:
1- the detainees shd be formally charged with accepted standards of fairness. If such fairness could not be provided or no evidence obtained,m the detainees should be released.
2- No statement obtained as a result of torture or human degrading treatment should be admitted as evidence.
3- The MC is not independent because it is under the Secretary of Defence – Excutive power not an independent judiciary
4- The DTA is discriminatrory on non-citizens to be tried in MC which has a lower standard of justice as compared to US courts.
Lastly, law and morality should at all time be in the affirmative with each other eventhough the former is enforceable while the latter could not.It is eventually consciousness that drives human's decision.
