From their legal limbo in Camp Delta, the US detention centre at Guantanamo Bay, five British detainees will soon be winging their way back to Britain after spending more than two years in the grim military facility in Cuba. During that time they were neither charged by the US authorities nor allowed any legal representation, a state of affairs which has been widely condemned by international human rights organisations as an affront to justice. It should be a time of rejoicing for their families and supporters. Under most circumstances the men’s release would be universally welcomed – the exact date has not been agreed – but ahead lies a legal minefield which will test to the full the special relationship between Britain and the US.
The “Guantanamo Five” could still face interrogation and possible arrest under Britain’s controversial anti-terrorism laws, which allow terrorist suspects to be held indefinitely. Meanwhile, four other British detainees remain in Camp Delta to face trial at some future date by US military tribunal.
There is also a growing belief that the release was a cynical move to divert attention from the US Supreme Court’s hearing later this year to test the legality of holding the Camp Delta detainees. Two of the released British detainees were named as plaintiffs in a legal challenge mounted by the Center for Constitutional Rights (CCR), arguing that the US cannot order indefinite detention without due legal process in “a prison that operates entirely outside the law”. Far from offering the closure which both governments would have preferred at a time when President Bush faces re-election and Prime Minister Tony Blair is under attack for supporting US policies, the release has reignited international outrage about the injustice of detaining people without trial at Guantanamo Bay.
The men’s release is part of a deal brokered between London and Washington to remove from captivity a number of “low risk” terrorist suspects. The decision was supposed to come as a welcome fillip to Blair at a time when he stands accused of failing to get concessions for the detainees in return for his unstinting support of US policies. But it is not by any means the end of the story for the five men – Shafiq Rasul, Asif Iqbal, Jamal Udeen, Tarek Dergoul and Ruhal Ahmed, all of whom were arrested by US forces in the wake of the anti- Taliban operations in Afghanistan in October 2001.
On their arrival home they still face interrogation and possible arrest by anti-terrorist police whose commander, Peter Clarke, claims that there is “a responsibility to all communities to investigate suspected terrorist activity”. Under the terms of the Terrorism Act 2000 they can be questioned for 48 hours and then detained for up to 14 days before being released or charged if it is found that they have a case to answer.
Major General Geoffrey Miller, the American commander of the Guantanamo Bay base, has insisted that all suspects detained there had been suspected of involvement in terrorism. All had been through a thorough screening process before being detained, he said.
Only one thing is certain. They are unlikely to face the treason charges demanded by the shadow home secretary David Davis and other opposition MPs. Not only would such an outcome be repugnant given the disquiet surrounding the treatment of the detainees, but the evidence would be difficult to assemble as it would require proof of involvement in terrorist activities in Afghanistan. According to a senior diplomatic source, it is almost impossible to gather solid evidence and then present it with any hope of success in an English court: “First, the events took place over two years ago, secondly, it was a period of chaos and collapse and, thirdly, the witnesses would be difficult to arraign. These circumstances will make it extremely difficult for the police to gather sufficient levels of admissible evidence to prove that the men were involved in acts of treason – that is, taking up arms against British service personnel in Afghanistan.”
Then there is the question of using evidence which may have been gathered while the men were being interrogated in Camp Delta. Clearly the five released men were investigated thoroughly during their detention, hence their release , but legal experts have pointed out that any evidence from US sources would not be admissible as it was gained without proper legal representation or the safeguards of British legislation. As the Sunday Herald’s diplomatic source put it, “any intelligence reports would be useful in understanding the men’s backgrounds but it would not stand up in court, presumably that’s one reason why they’ve been released by the US authorities”.
Nonetheless, as part of the deal with the US the men will face interrogation on their return. The Bush administration made the demand before putting in more diplomatic language. A spokesman for the US State Department claimed they had “full confidence” that the five men would be interrogated to ensure they no longer posed a threat to the US and its allies in the war against terrorism. At its most extreme this could result in further detention and arrest under the Terrorism Act 2000. But this could only happen as a result of the men providing either an admission that they belonged to illegal terrorist groups or the discovery of fresh evidence leading to a court appearance.
While the release of the Guantanamo Five has been welcomed, the fate of the remaining 660 detainees remains an issue of concern. The Bush administration is quite clear about its own position. The detainees, from 42 countries, are “enemy combatants” who are not prisoners of war but are being held prior to being tried by military tribunals at some future, though unspecified, date. Amongst their number are the four remaining British detainees – Feroz Abbasi, Moazzam Begg, Martin Mubanga and Richard Belmar. The reality of that detention has provoked international outrage. Having been taken prisoner in Afghanistan or Pakistan they were flown to Cuba onboard military aircraft blindfolded and manacled and wearing distinctive orange prison uniforms.
The conditions in Guantanamo Bay are spartan, though critics say they are no worse and in some cases better than what might be found in older British jails. In the early days the US was keen to show that it had nothing to hide and reporters were welcome to inspect the facilities, but all that changed when inmates used the opportunity to make complaints. According to Miller, Camp Delta’s commanding officer, there have been significant improvements to the detention centre.
But a recently released Swedish intelligence report paints a chilling picture of cramped cells divided by wire meshes with comfortless concrete floors: “Inside the cells the detainees have a mattress, a blanket, a hand towel, a couple of buckets and water bottle made from soft plastic. Outside their cells the detainees wear orange overalls and plastic slippers. Their freedom of movement is not restricted to the cells, although outside their cells they wear hand and feet restraints. The handcuffs are fastened to a belt around their waist allowing them only restricted movement with their hands and arms.”
While admitting that the detainees have not been tortured or subjected to degrading treatment the Swedish report insists the conditions are inconsistent with modern standards of detention. Because of the design and layout of the cells there is no privacy and none of the inmates is given any knowledge of what is happening in the outside world. As far are the events of the past two years are concerned, they could be on another planet.
But it is not just the physical conditions which have raised concerns. There is growing frustration with a legal position which allows detainees to be held without trial and where little attempt has been made to establish guilt. As things still stand at Guantanamo Bay, detainees face indefinite confinement, they have no access to legal representation and ahead lies the prospect of trial in front of a military tribunal which has shaky legal foundations.
For CCR director Michael Ratner, this flies in the face of the principles on which the US was founded: “One of the most fundamental democratic principles is at risk in this case: whether the government may detain people without charge and deny them the right to test the legality of their detention in open court. This is a principle that goes back to the Magna Carta. If the government is permitted to evade all scrutiny by the federal courts then the most arbitrary type of executive detention has been sanctioned. This is precisely the issue that concerned the framers of the US constitution.”
With a presidential election facing him later in the year, Bush continues to insist that the detainees are “bad people” who are the “worst of the worst” and that the prison at Guantanamo Bay is outside the jurisdiction of the US courts. Citing the rules of war, albeit selectively, US legal officials are adamant that they are simply holding suspected combatants until the end of hostilities in the war against terrorism, and that, as the men are suspected terrorists fighting for an illegal organisation – al-Qaeda – the US will not be bound by the terms of the 1949 Geneva Convention which lays down legal guidelines for the proper treatment and protection of prisoners of war. Administration lawyers also claim the laws of war allow this kind of detention for the duration of hostilities. But as the internationally respected Human Rights Watch points out, the US can no longer hide behind that excuse: “In the absence of a lawful reason to detain a person, the US government must either charge that person with a crime or release him or her. If it is holding detainees who are in fact combatants under the laws of war, the US government must comply with the requirements of those laws … If it is holding civilians who do not pose an imperative risk to US security under international law they must be immediately released and repatriated unless they are charged with a crime.”
Lawyers working for Human Rights Watch and other concerned organisations such as the Inter-American Commission on Human Rights have described Guantanamo Bay as “a legal black hole”. The detainees are probably being held illegally, there are serious question marks about the structure and standing of the military tribunals and there is no right of appeal to an independent body.
So far none of these concerns has found its way into the presidential election debate. Showing some of the ambivalence he brought to his attitudes towards the war in Iraq, the Democrats’ front-runner John Kerry has voiced support for the detentions “as long as al-Qaeda is actively trying to take down America”, while conceding that the detainees should be given humane treatment and access to legal counsel. His wife Theresa Heinz Kerry has gone further, arguing that the treatment of the Guantanamo detainees is “insulting, ignorant and insensitive” and that “the arrogance shown by this administration on human rights and in its foreign policy is horrible”. Her words have encouraged those campaigning to control the black hole at Guantanamo Bay but they also know that the words count for little unless they are echoed by her husband.
www.sundayherald.com/40097E-mail this article