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U.S.: Critics Of Guantanamo Detention Say Policy Shift Late But Welcome

  • Andrew Tully

In the past week, there has been much activity surrounding the more than 600 suspected Taliban and Al-Qaeda fighters who have been held without access to lawyers at the U.S. naval base at Cuba's Guantanamo Bay for nearly two years. First, the administration of U.S. President George W. Bush has decided to free at least 100 of the prisoners, and now one of the captives is being allowed to consult with an attorney. Critics of the detention program say it is about time Bush began changing a policy they call both unfair and unlawful.

Washington, 5 December 2003 (RFE/RL) -- Shukri Abed does not mince words when he speaks about the treatment of the terrorist suspects being held at Guantanamo Bay -- and the damage he believes it is doing to the credibility of American justice.

"From all the reports we have, [the Americans] are treating [the prisoners] like animals, putting them in a land -- in a part of Cuba where they have no legal status," Abed said. "The U.S. should be legal, even when it's being attacked. The U.S. should not compromise its wonderful liberal views or legal system. They are judged before they are tried, and that's un-American, really."

Abed specializes in Arab and Islamic issues at the Middle East Institute, a private policy center in Washington. In an interview with RFE/RL, he said that German prisoners were treated far better after World War II, despite the atrocities their government committed against Jews, Poles, Roma, and others.

U.S. President Bush tries to appear as a "sweet and nice man," as Abed puts it. But Abed said this is in sharp contrast to what he sees as hostility to Arabs and Muslims harbored by the so-called neoconservatives in Bush's administration.

"The whole administration attitude is very harsh toward Arabs and Muslims," Abed said. "These neoconservatives are very, very unfriendly toward Arabs and Muslims, to say the least."

Abed said he welcomes the news that many of the Guantanamo prisoners might be released soon, and he applauds the pressure -- both political and legal -- that he believes prompted the administration to soften its detention policy.

Besides releasing the group of prisoners, the administration is allowing one of the Guantanamo inmates -- David Hicks, an Australian suspected of having trained with Al-Qaeda in Afghanistan -- to have access to a lawyer. Hicks is one of six prisoners designated as candidates for trial before a special military court.

Separately, U.S.-born Yaser Esam Hamdi -- a suspected Al-Qaeda member who is being held at a different facility in the United States -- also is being allowed to see a lawyer. Although he lived only briefly in the United States before his detention, Hamdi is an U.S. citizen because of where he was born.

The Bush administration is permitting legal representation for Hicks and Hamdi as it faces a challenge in the U.S. Supreme Court -- the country's highest court -- about the legitimacy of its detention policy.

The administration has contended since the war began in Afghanistan more than two years ago that those captured during the fighting do not merit the treatment that the Geneva Conventions require for prisoners of war (POWs). Instead, it has said, they are "unlawful combatants" because they themselves did not follow the conventions' rules for war -- primarily because they did not wear uniforms that identify the side for which they were fighting.

Abed said he believes the sudden decision to allow the prisoners to have lawyers is a grudging effort to make the administration's policy more palatable to the Supreme Court. He also pointed to the timing of news that some of the other prisoners in Guantanamo will finally be facing trial.

"Notice the proximity of this move to the visit of [Bush] to London about two weeks ago," Abed said. "Remember, there are nine British detainees [at Guantanamo]."

Wendy Patten is the Washington-based U.S. advocacy director for the New York-based Human Rights Watch. She is less certain that the Bush administration is buckling under pressure, or that its policy shift is a cynical effort to win the Supreme Court case. Still, she told RFE/RL, the pressures cannot be ignored.

"I think certainly the kinds of criticisms that have been raised about the failure to comply fully with the Geneva Conventions at Guantanamo, and the broader questions about the rule of law, certainly formed the context in which these actions are being taken," Patten said.

From the standpoint of international law, she said, the Bush administration's arguments about the prisoners' status is untenable. First, she said, Taliban prisoners should be treated as POWs because they were Afghanistan's regular army, whether they wore uniforms or not.

As for Al-Qaeda fighters, Patten said the United States classifies them somewhat accurately, but that the conditions of their detention are still unlawful.

"The U.S. government is probably right that the Al-Qaeda members are not eligible for prisoner-of-war status, although they should have had an individualized determination of their status," Patten said. "But even those who would not be eligible for POW status -- if they were captured in and around the battlefield in Afghanistan, then they're still protected by the Geneva Conventions and international humanitarian law more broadly -- not as prisoners of war, but they're still nonetheless protected."

Patten said she is not qualified to assess the prisoners' living conditions. She said only the Red Cross has been able to inspect Guantanamo, and that its reports are shared only with the U.S. government and the governments of the prisoners' home countries. Yet, she said, there have been no broad reports of torture and the suspects' housing appears to be adequate.

But Patten said Human Rights Watch is concerned about the limited time prisoners are permitted outside their cells for exercise, which she said can have a detrimental psychological effect on them. She also commented wryly on reports that some of the prisoners are eating better than they have in their entire lives: "At what price freedom? When someone is being deprived of their liberty, it's no response that they're being given three square meals a day."

Patten said her organization welcomes news that a large group of Guantanamo prisoners might be sent home soon. But she said these suspects' freedom, whenever it comes, will highlight a new problem.

"Those releases will leave unanswered all of the legal questions that have surrounded the detentions at Guantanamo," she said. "And obviously it still leave us with the issue of the 500-plus detainees who will remain at Guantanamo after these releases. When and how will their cases be resolved?"
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