Justice says others help Obama shut Guantanamo

Editorial

January 5, 2009

‘Australia shares responsibility with the US for cleaning up the mess.’

GUANTANAMO Bay is and always has been a legal black hole, deliberately set up by the Bush Administration on a US military base in Cuba to hold terrorism suspects beyond the reach of US courts and, for that matter, international law. For six years, the world observed a charade of justice, as the Administration thwarted a succession of efforts to challenge, in a properly constituted court of law, the legal basis for the detention of 775 detainees in all.

Last June the Supreme Court finally established that the detainees could not be held beyond the reach of US law and upheld their claim to the centuries-old right of habeas corpus. Incoming president Barack Obama has already distinguished himself by denouncing Guantanamo as a "sad chapter in American history" and vowing to shut it down as he moves to rebuild "America's moral stature in the world". As his legal adviser, Harvard law professor Laurence Tribe, has said: "We can't put people in a dungeon forever without processing whether they deserve to be there."

Most of the 255 people still detained at Guantanamo are expected to be freed. Only one, Osama bin Laden's former driver Salim Hamdan, has undergone a trial by the Bush Administration's military commission that actually tested the evidence against him. Sentenced to 5½ years in prison, including his time in detention, he was released last month in his homeland, Yemen.

A minority of so-called "high-value" suspects such as Khalid Sheikh Mohammed, the alleged mastermind of the September 11 terrorism, can rightly expect to be charged and tried in a court of law that complies with the democratic norms of justice. Even then, the admissibility of confessions and other evidence has regrettably been tainted by their long detention in harsh conditions and, in some cases, torture.

Another problem the US faces is resettling detainees whom it has demonised repeatedly to justify their years of detention without trial. In several cases since the Supreme Court's ruling in June, US courts have assessed the evidence against the men brought before them as being too weak to justify their detention and ordered their release. The US has now cleared about 60 detainees for release, but is unable either to ensure their safety if they return to their home countries or to find other countries willing to accept them.

Only a few nations, such as Germany and Portugal, have said they will consider taking detainees. The Netherlands has responded with an argument that is likely to resonate with a public that is also naturally fearful of men held as terror suspects for so many years. "If they are not to be tried but cannot return to their countries, it is first and foremost the responsibility of the country which arrested and imprisoned them, the United States," a Foreign Ministry official said. In other words, it's their mess and they should clean it up on their own. Unfortunately, the likely consequence would be to doom a large number of probably innocent people to yet more time in detention.

And the US did not do this all on its own. A few nations that were once supportive of Guantanamo Bay, including Australia under the Howard government, share the shame and some responsibility for helping to shut it down. The Rudd Government is one of about 100 asked by the US to help clear the camp. Acting Prime Minister Julia Gillard said at the weekend that the Government had rejected a request to accept a group of detainees as they did not meet security and immigration criteria but that future requests would be considered on a case-by-case basis.

A number of legal experts have already sought to establish the truth about the 775 detainees deemed to be "enemy combatants". One two-year project by Professor Mark Denbeaux and his students at Seton Hall Law School, in New Jersey, based on official documents, found that 86 per cent of detainees were not enemy combatants at all. As David McColgin, a lawyer for detainees, points out, "A lot of it was justified on false reports from local Afghan people who simply wanted to get the bounty money the US Government made available, which was a real incentive to provide potentially false information." Until recently, none of this information was tested in court.

Only 14 per cent of detainees were actually captured on a battlefield, but many of those are believed to be among the people still in detention. Thus the domestic political difficulties of resettling any detainees are considerable. However, Australia has already done so in the case of two of its citizens, both of whom are now free. Three years ago, Mamdouh Habib was freed without charge after three years at Guantanamo. He had been vilified by the Bush Administration and the Howard government, in order to persuade the public he belonged among the alleged "worst of the worst" at Guantanamo. No proper explanation, no apology, was offered upon his return. David Hicks returned to Australia in May 2007 to complete a nine-month sentence, having agreed to a plea-bargain deal as a way to end his 5½-year ordeal.

The bottom line is that if other nations want the US to end the injustices endured by the detainees of Guantanamo Bay, they will probably have to help. This dark chapter must be closed soon in order to reclaim some of the high moral ground that the US and its allies so needlessly surrendered in their struggle against terrorism.

This story was found at: The Age Article