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Chapter 4: The Security Detainees and
the Criminal Justice System
The prosecution of the war in Afghanistan has resulted in the detention by the United States of citizens of at least 43 other countries. Almost 600 of these suspects have been transferred to detention and interrogation facilities on the United States Naval Base at Guantanamo, Cuba. At the same time, police action within the United States has resulted in the detention, without charge, of others, including U.S. citizens, suspected of links with the al Qaeda organization. At least two U.S. citizens are being held without charge or trial in U.S. military custody. The executive has maintained that both U.S. citizens and non-citizens suspected of collaboration with the Taliban or al Qaeda can be held indefinitely as “enemy combatants.” As such they are being held without a court order or judicial review of the legality of their arrest. These prisoners are being held incommunicado, without access to counsel, in military custody.
The names of the detainees have not been released. Six months after most of the transfers, officials have acknowledged that no one detained at Guantanamo has been identified as a high-level al Qaeda member. None have been charged with any crime.
On the plus side, in recent months, the administration has begun to rely more on the criminal courts to adjudicate national security cases. One U.S. citizen detained in Afghanistan, John Walker Lindh, was charged with crimes based on his incorporation into the Taliban’s forces. He was convicted by a civilian court after having agreed not to contest the case. The government is also prosecuting Zacarias Moussaouai and Richard Reid. In recent weeks, four foreign nationals detained in the United States as suspects in the planning of violent political attacks, some of whom were held for long periods without charge, have now been indicted by a federal court in Michigan. Another U.S. citizen, James Ujaama, was indicted in Washington State.
But, on a parallel track, in November 2001, President Bush issued a Military Order to create extraordinary military tribunals, called military commissions. The special tribunals were authorized to try non-citizen suspects seized in military and police actions under truncated procedures that do not comply with the standards of U.S. military justice. The plan to create these military commissions met with widespread criticism from across the political spectrum. In part because of this reaction, no case has yet been brought before these tribunals.
THE LEGAL FRAMEWORK
International humanitarian law, or the law of war, grew out of a need to codify principles developed over centuries to make wars less inhumane. Humanitarian law outlaws practices of brutality and inhumanity that all states agree have little or no utilitarian value toward the rational end of a belligerent party: destroying the enemy’s ability to continue military resistance. By eliminating unnecessary suffering attendant to war and protecting those who are not, or – as in the case of the wounded or prisoners of war – are no longer, participants in the fighting, humanitarian law created incentives for defeated armies to surrender rather than fight needlessly to the death. It also helped preserve human and material wealth on both sides of a conflict whose destruction had no significant impact on the war’s outcome. Finally, it facilitated peacemaking at the conclusion of hostilities, by mitigating the grounds for mutual rancor. The most comprehensive and universal expression of international humanitarian law is in the four Geneva Conventions of 1949.
The Geneva Conventions serve as an overlay to the broader body of international human rights law, which sets forth the minimum rights of every human being, at all times. Human rights law is contained in numerous instruments and unwritten traditions and practices (customary international law). Among the most important instruments of international human rights law is the International Covenant on Civil and Political Rights, which sets forth the minimum rights recognized by states parties as applicable “to all individuals within [their] territory and subject to [their] jurisdiction....without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Another crucial instrument of human rights law is the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The United States is a party to both of these conventions and legally bound by their provisions. While some elements of human rights law may be derogated from in times of war, human rights law itself continues to apply at all times, in war as in peace.
Finally, each state has its own national laws, including constitutions, statutes and judicial case law. These too establish basic rights, norms of treatment, and other kinds of legal obligation. For the United States, the U.S. Constitution is the most important source of standards for the rights of Americans and others within or linked to the United States.
PERPETUAL WAR OR NATIONAL EMERGENCY
One important principle of humanitarian law is that prisoners of war and other enemy belligerents may for security reasons be kept in detention until the “cessation of active hostilities.” This raises a troublesome question relative to both the status of detainees seized in the context of the United States’ antiterrorism measures and the broader emergency measures taken domestically. The ongoing investigations and police actions have been described by U.S. officials as part of a “war against international terrorism,” but increasingly, they are taking place at home, outside of the immediate context of armed conflict. To a large extent, the relevant standards to apply to the domestic dimension of these measures are to be found in international human rights law and not in humanitarian law.
All indications from the administration are that they conceive of their ‘emergency’ measures as long-term. As one official put it, “We’d rather be safe than sorry. The administration didn’t want to be in the position of conceding power we may need five years from now, because we don’t know what the war will be like five years from now.” The administration is reluctant to acknowledge that far from protecting powers traditionally held by the executive, they are actually effecting a major shift in balance of powers among the three branches of government. And in doing so, they are asserting broad authorities that should, under both domestic and international law, be wielded sparingly, only to the extent strictly required by the circumstances, and in all cases subject to judicial monitoring and review.
 International Convention on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966), entered into force March 23, 1976, article 2. The United States ratified the ICCPR in 1992. The full text of the ICCPR is available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (accessed August 27, 2002).
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/RES/39/46 (1984), entered into force June 26, 1987. The full text of the Convention Against Torture is available at http://www.unhchr.ch/html/menu3/b/h_cat39.htm (accessed August 27, 2002).
 “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” Convention (III) Relative to the Treatment of Prisoners of War. Geneva, August 12, 1949, article 118, 75 UNTS 135 (Third Geneva Convention). The Convention is available at http://www.icrc.org/ihl.nsf/b466ed681ddfcfd241256739003e6368/
5cd83e96981e1ee0c12563cd00427ee4?OpenDocument (accessed August 27, 2001).
 Charles Lane, “Debate Crystallizes on War, Rights,” Washington Post, September 2, 2002.
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