Indefinite Detention at Gitmo Criticized as "Legal Nihilism"

Published on
by
Inter Press Service

Indefinite Detention at Gitmo Criticized as "Legal Nihilism"

by
William Fisher

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)

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".

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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