The Bush administration has been issued a legal setback in its attempts to indefinitely detain prisoners of the "war on terror," both in the U.S. and at the prison camp at Guantánamo Bay, Cuba.
In a recent ruling, a federal appeals court found that Bush doesn’t have the authority to declare civilians inside the U.S. to be military combatants and have them held indefinitely.
The ruling centered around the case of a Qatari citizen, Ali al-Marri, the only U.S. resident being held as an enemy combatant within the U.S. Al-Marri was arrested in 2001 and has been held in solitary confinement in a Navy brig in Charleston, S.C., since June 2003.
The Bush administration claims that al-Marri is an al-Qaeda operative who was active in the U.S., but it refuses to allow him to have a trial in order to fight the charges against him. Al-Marri’s lawyer, Jonathan Hafetz, from the Brennan Center for Justice, told the Associated Press that prosecutors are refusing to charge al-Marri because they lack evidence–"or the evidence they’ve obtained is through torture, unreliable or unacceptable in civilized society."
In a 2-to-1 ruling, the court found that the federal Military Commissions Act, passed last year, does not strip al-Marri of his constitutional right to challenge his accusers in court.
"The president cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the court said. "Put simply, the Constitution does not allow the president to order the military to seize civilians residing within the United States, and then detain them indefinitely without criminal process, and this is so even if he calls them ‘enemy combatants.’"
As Steven Shapiro, legal director of the American Civil Liberties Union, said in a statement, "It is difficult to imagine a more complete repudiation of the administration’s strategy of treating suspected terrorists as enemy soldiers who can be subject to indefinite detention by the military without charges or trial."
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UNFORTUNATELY, THE al-Marri decision doesn’t apply to the estimated 385 prisoners who remain in a legal limbo at the U.S. military gulag at Guantánamo Bay.
However, they also recently received a small bit of good news when military judges dismissed all charges against the only two Guantánamo prisoners facing trial, saying they had been designated only as "enemy combatants," and not "unlawful enemy combatants," as required by the 2006 Military Commissions Act.
The rulings are seen as another setback for the Bush administration, which had hoped to begin pointing to convictions as progress in the war on terror–and justification for continuing the system of indefinite detentions.
One of the men in question, Omar Ahmed Khadr, a Canadian national, was just 15 years old when he was sent to Guantánamo Bay–a clear violation of international law, under which child soldiers are considered victims of warfare, not war criminals.
Though the Pentagon could appeal the decision and take steps to reclassify the prisoners as "unlawful enemy combatants," some politicians are taking the opportunity to quietly raise questions about Guantánamo, and whether detainees should have their legal right to habeus corpus restored–something that Republicans and Democrats in Congress stripped from them when they approved the Military Commissions Act.
But taking away the rights of detainees has been the norm for the Bush administration, Congress and the courts ever since September 11.
Despite claims by the Bush administration that it would like to eventually close Guantánamo, according to a recent Boston Globe report, there have been at least three detainees quietly transferred to the prison camp since March–the first to be sent there since 2004. In addition, the number of detainees being released has also slowed.
"It’s like Guantánamo is getting its second wind, and becoming a permanent option," Joanne Mariner, director of the Terrorism and Counterterrorism Program at Human Rights Watch, told the Globe.
Two of the men recently sent to the camp were captured during U.S. operations in Somalia, suggesting that the Bush administration sees Guantánamo as a permanent part of expanding the "war on terror" globally.
"Rather than closing Guantánamo, they’re using it for the next phase, in another front in the war on terror," Jonathan Hafetz told the Globe. "It shows that the administration still believes Guantánamo is a viable way to hold people indefinitely without due process."
That means devastating consequences for detainees. On May 30, the brutality of Guantánamo drove another prisoner to suicide. Abdul Rahman Ma’ath Thafir al-Amri was found in his cell, not breathing. U.S. officials refused to say how he died, but reported that his death was an apparent suicide.
Al-Amri is one of four detainees who have killed themselves at the U.S. camp. Al-Amri had been imprisoned, without charges, since February 2002.
Because he had no lawyer of record, few details are known about him beyond what the Pentagon has chosen to release to the public. U.S. officials claim that al-Amri, originally from Saudi Arabia, was a "mid-level" detainee who traveled to Afghanistan, where he ran safe houses for al-Qaeda and tried to kill American troops.
According to reports, al-Amri had been held in "Camp 5"–one of two high-tech, "maximum security" facilities at Guantánamo. Camp 5 is one of the areas at the camp in which "troublesome" and "high-value" detainees are housed. It is designed to keep prisoners in near-constant isolation.
"Camp 5 is just utterly grim psychologically," Sabin Willett, a lawyer for some detainees, told the Associated Press after al-Amri’s death. "There’s no question that isolation destroys human beings."
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OF THE approximately 385 prisoners housed at Guantánamo today, only a handful have been charged with any crime. According to international human rights groups and lawyers, the psychological impact of indefinite detention, combined with harsh living conditions and brutal interrogation practices, has been devastating.
Prior to al-Amri’s suicide, two Saudi detainees and a Yemeni detainee hanged themselves on the same day last June, using clothing and bedding in their cells. Lawyers say that dozens more suicide attempts have occurred throughout the camp’s history.
Hunger strikes–one of the only forms of protest available to detainees–have also become a common occurrence, with dozens, and sometimes hundreds, refusing meals at various points. U.S. officials responded with brutal force-feedings, designed to inflict pain and punish detainees who dare to refuse to cooperate. As of April, at least 12 detainees were on hunger strike and being force-fed.
In al-Amri’s case, reports suggest that he was on hunger strike as recently as March. Military records show that during a past hunger strike in 2005, al-Amri’s weight dropped below 90 pounds at one point–down from the 150 pounds he weighed when he was first brought to the prison camp.
The kind of despair that drove al-Amri to his death has been felt by others. Juma al-Dossari, a Bahrainian detainee who is still imprisoned, reportedly attempted suicide more than a dozen times since he was first brought to Guantánamo in 2002. One attempt was made during a visit by his lawyer, Joshua Colangelo-Bryan, in October 2005.
According to the Center for Constitutional Rights (CCR), al-Dossari had been held at that point for almost two years in near complete isolation, and had been subjected to abusive interrogations, including the threatening of his life and family, and sexual humiliation.
In a suicide letter, al-Dossari wrote, "[R]emember that the world let us and let our case down…Remember the unreasonable delay of the courts in looking into our case and to side with the victims of injustice…
"Remember that if there were people who are actually fair and who defend justice and defend the victims of injustice and if there are judges who are fair, I wouldn’t have been wrapped in death shrouds now and my family–my father, my mother, my brothers and sisters, and my little daughter–would not have to lose their son…but what else can I do?"
The letter, "reveals a man brought to the brink of self-destruction because of the government’s inhumane policies of indefinite detention and mistreatment," said CCR Deputy Legal Director Barbara Olshansky.
Now, the suicide of Abdul Rahman al-Amri proves once again that there’s nothing humane about the U.S. prison camp. As Anthony Romero, executive director of the ACLU, said following al-Amri’s death, "Further deaths at Guantánamo should not surprise us when prisoners are afforded a second-class system of justice, are held indefinitely without charge, and are given only limited access to their lawyers."
NICOLE COLSON writes for the Socialist Worker.