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Last Updated: Wednesday, 10 March, 2004, 04:08 GMT
Head-to-head: Is the US breaking the law?
The US continues to hold some 640 detainees at a military base at Guantanamo Bay Cuba.

Critics say that the detainees are being denied due process and that the US is breaking not only international law but is acting in ways that violate its own Constitution.

Further, they argue that if 640 Americans were held in such a manner, the American public would be outraged and be calling for swift military action.

Pentagon officials say that the detainees are not at Guantanamo Bay for criminal punishment, but as enemy combatants in an ongoing war, and US officials argue that the detainees are being treated in a manner consistent with prisoners of war in past conflicts.

Here, commentators on either side of the divide give their views on the legality and morality of the detentions:

Against

David Danzig, spokesperson, Human Rights First says the detentions violate US and international law:

The lack of due process and the absence of any independent judicial oversight at Guantanamo violate the most basic precepts of international and US law.

The most glaring example of this failure to uphold international law relates to the lack of individual review of the detainees' cases.

According to the Geneva Conventions and established US military practice, every individual allegedly captured in battle is entitled to a hearing by a "competent tribunal" if there is any doubt as to whether or not he should be detained, or should have the rights of a prisoner of war. Not a single of these so-called Article 5 hearings has taken place at Guantanamo.

These hearings are especially important given the circumstances under which many detainees were transferred into US custody. Many were handed over to US forces by Northern Alliance warlords or others, in exchange for cash.

Individual review of the facts surrounding a person's detention would help ensure that none of those held are simply people who happened to be at the wrong place at the wrong time.

As for American law, US officials are trying to sidestep that issue by insisting that US law does not even apply at Guantanamo. It's "the legal equivalent of outer space" one government attorney has explained.

The logic here is that the military base, though under perpetual US control, is technically leased from Cuba. Therefore, US officials insist, the Constitution does not apply.

The notion that there could be a place where no law reaches runs against the basic idea human rights and law itself - basic principles that are inalienable and apply to all people all over the world.

The fact that the United States, a nation that perceives itself as a champion of liberty, would make this argument is stunning.

For

Guantanamo detainee
Paul Rosenzweig, senior legal research fellow at the Heritage Foundation and adjunct professor of law at George Mason University argues that the US is acting within the law and should not release those pledged to its destruction:

Both international law and the US Constitution sanction the detention of the 640 al-Qaeda fighters at Guantanamo Bay, Cuba.

Because they're not lawful combatants, they're not entitled to the protection of international treaties. And since they're not US citizens and weren't detained in the United States, they're not entitled to the protections offered by the US Constitution.

International law defines a "lawful combatant" as one who wears a uniform, carries his weapons openly, responds to the hierarchy of military authority and fights according to the laws of war (e.g. not targeting innocent civilians or hiding behind them in hospitals).

The detainees at Guantanamo were captured while fighting for al-Qaeda or the Taleban, neither of which purported to abide by the laws of war. The detainees represented no government and thus no military hierarchy.

Some governments tried to change this definition in the 1970s - to include Third World "freedom fighters" as legal combatants if they had a political goal - but the United States never signed the changed treaty.

America can detain the al-Qaeda fighters - the Geneva Convention allows detention of combatants as long as the conflict continues, and this conflict is hardly over.

Moreover, it should. It makes no sense to release people who remain dedicated to our destruction.




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