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Indefinite Detention at Gitmo Criticized as "Legal Nihilism"

by William Fisher

NEW YORK - A new U.S. government report is recommending that 48 men currently detained at Guantanamo Bay should be held indefinitely without trial because "for many of the detainees, there are no witnesses who are available to testify in any proceeding against them".

A Guantanamo detainee's feet are shackled to the floor as he attends a class inside the detention facility at Guantanamo Bay US Naval Base in April 2010. Referring to the new US report, one legal scholar said, "This category of 'unlawful enemy combatants' negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties." (AFP/Pool/File/Michelle Shephard) But authorities who follow the tortuous fortunes of Guantanamo say there is another reason: The evidence against them has been produced by confessions obtained through torture and would not be admissible in either a civilian or military court.

The report comes from the Guantánamo Review Task Force, appointed by President Barack Obama during his first week in office to review and assess each detainee's case to determine his fate.

The report found that the large majority of detainees were low-level fighters who were not involved in plots against the United States. It recommends that 126 of the detainees still held at Guantánamo be transferred to their home countries or a third country, that 36 be prosecuted in federal courts or military commissions, and that 48 of the detainees be held indefinitely without charge or trial.

Constitutional law experts and civil liberties advocates have consistently maintained that the U.S. system of justice leaves no place for people who are deemed "impossible to try but too dangerous to release".

Many of them expressed this view in response to the recent introduction of legislation that mandates trials only by military commissions and recognizes and plans for a category of prisoners to be held indefinitely without charge or trial. The legislation was introduced by Senator John McCain, a Republican from Arizona, and Lindsey Graham, a Republican from South Carolina.

Commenting on the legislation, Chip Pitts, president of the Bill of Rights Defense Committee, told IPS, "This bill's warped understanding of international law and its mistaken predicate still blur actual wars - such as those in Afghanistan and Iraq today - with the politically appealing yet misleading and overbroad chimera of an endless and geographically unlimited 'global war on terror'."

He added, "Particularly when seen along with the Obama administration's rumored reversal of its prior decision to try 9/11 suspects in civilian courts as opposed to military commissions, it's another leg in the terrible race to the bottom in which politicians compete to seem 'tougher' on terrorism while really diminishing national security."

Prof. Peter Shane of the Ohio State University law school told IPS, "There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons."

"There is no evidence to believe that the executive branch is making decisions with regard to the interrogation or detention of suspected terrorists that is compromising either our capacity to obtain intelligence information or to protect the United States from terrorist attack," he noted.

The George W. Bush administration, he added, "convicted over 300 terrorist suspects apprehended in the United States using our criminal justice system to prosecute terror-related crimes. We should continue to leave these decisions to the discretion of federal prosecutors and investigators."

Another legal scholar, Prof. Frances Boyle of the University of Illinois law school, told IPS that the current controversy had its roots in the Bush administration, who created a universe of "legal nihilism where human beings (including U.S. citizens) can be disappeared, detained incommunicado, denied access to attorneys and regular courts, tried by kangaroo courts, executed, tortured, assassinated and subjected to numerous other manifestations of state terrorism."

He said, "This category of 'unlawful enemy combatants' negates almost the entirety of the post-World War II regime for the International Protection of Human Rights established by the U.N. Charter in 1945 and most of the major international human rights treaties."

The American Civil Liberties Union (ACLU) also rejected the notion that there is a significant class of prisoners who simultaneously cannot be prosecuted or safely released. She said detaining terrorism suspects without charge or trial is "illegal and un-American".

Laura W. Murphy, director of the ACLU Washington Legislative Office, said it was "Incredibly disturbing to hear that the Obama administration will continue to hold a significant number of detainees without charge or trial, many of whom were presumably not captured near any battlefield."

"It would be a colossal error for the Obama administration to continue its predecessor's policy of indefinitely holding terrorism suspects, whether at Guantanamo or on U.S. soil. Detaining individuals indefinitely without charge or trial is un-American and violates our commitment to the Constitution and due process," she said.

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