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Last Updated: Friday, 10 October, 2003, 10:22 GMT 11:22 UK
Q&A: Guantanamo Bay detainees
US officials insist the 600 detainees in Cuba are not prisoners-of-war under the Geneva conventions. News Online looks at their legal status.

Why are the detainees in Cuba?

In the aftermath of the war in Afghanistan in 2001, about 660 people from 42 countries were sent to Guantanamo Bay for interrogation and detention.

The detainees were taken to a place outside US territory to minimise the application of legal constraints that might otherwise apply.

The US has an indefinite lease on Guantanamo Bay as a base from a Cuban government which preceded that of Fidel Castro.

What is their status?

The US considers them to be "enemy combatants", but "unlawful" ones, outside the normal legal framework. They are being held indefinitely without trial or access to lawyers, though the US goverrment says that military tribunals are planned for at least some of them.

The concept of "unlawful combatant" comes from a case during the Second World War in which German saboteurs were caught in the United States wearing civilian clothes.

The US courts held that they were not subject to the protection of the Geneva conventions, which say that civilians can become combatants but must carry arms openly and respect the rules of war. Several saboteurs were executed.

Washington says it will not treat the detainees as normal criminals because of their alleged links to Osama Bin Laden's al-Qaeda network.

What does their status mean for the detainees?

If the detainees are not legally prisoners of war, then they are not entitled to various protections provided by the Geneva conventions.

Also, certain restrictions on interrogation of prisoners-of-war, contained in the Geneva conventions, will not apply.

Human Rights Watch says that the prisoners are in a "legal black hole."

What is the attitude of the US courts?

A US Appeals Court rejected a claim by a number of prisoners for a writ of habeas corpus. This is an ancient right in English law and was put into the US constitution. Under it a prisoner may petition to be brought to a court and have the legality of his imprisonment examined.

The court ruled that it had no jurisdiction because the prisoners were aliens and their place of imprisonment was not in US territory.

However, the US Supreme Court has now decided to examine the issue itself and is expected to make a ruling sometime in the first half of next year.

What legal opposition has there been?

Many lawyers in the United States have criticised the refusal of the US courts to claim jurisdiction. So have former judges and diplomats. Many of them put their arguments to the US Supreme Court.

The British Court of Appeal rejected a petition by a British detainee for a judicial review of the British government's position. But it found his indefinite detention "objectionable" and said that it "surprising" that the US courts had refused to intervene.

One senior British judge, Lord Steyn, who sits on Britain's highest court, has said that Guantanamo Bay is a "monstrous failure of justice."

Do they have any safeguards?

Yes. The detainees are protected by the general international law of human rights. This requires humane conditions of detention and fair trials in the event of prosecutions.

The US Government has said that it is treating the detainees in accordance with the principles of the Geneva conventions. It also allows visits to the prisoners by the International Committee of the Red Cross.

What sort of trial do they face?

The Pentagon has said that military tribunals will be used and that they will be fair.

Human rights groups argue that they would not give the defendants proper protection. For example, an accused or his lawyer would not be able to see all the evidence against him.

The British Government has argued for better safeguards, including civilian judges on an appeals panel. Nine Britons are among the prisoners.

There have been reports that some prisoners will be freed.

What happens to those found guilty?

Those found guilty in military tribunals will be sentenced by military judges. If there are any criminal trials, they would be sentenced in the ordinary manner.

Depending on the particular charges, the death penalty may be available.

From convictions by military commissions, there is an appeal process but it goes through the Defence Secretary to the President, not to the civilian courts unlike US courts martial.

Why are US citizens not held in Cuba?

Because they have rights under the US constitution not available to others. One prisoner in Guantanamo Bay, Yasser Hamdi, was found to have been born in the US, though he grew up in Saudi Arabia, and was therefore a US citizen. He was transferred to a military prison in the US.

Having been held without access to a lawyer, it has now been announced that, after all, he will get legal advice.


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