18 Sep Golden on Guantanamo
There is a must read piece on Guantanamo in the New York Times magazine yesterday by Tom Golden. Golden interviewed more than 100 military and intelligence officials, guards, former detainees and others. I came away from the article with the impression that there are continuing struggles between intelligence investigators interrogating the detainees and the commanders who are seeking to maintain order.
But it appears from Golden’s interviewees, including former detainees and their lawyers, that there was no allegation of torture. The entire article is about disputes over the living conditions at the detention facility. When leading detainees negotiated for better treatment their demands were for bottled water, more variety of food, more books, quieter sleep, etc. Those were the kinds of grievances that the detainees were expressing and the officers were addressing.
Of course there is the larger issue regarding the prolonged detention of these individuals without trial which lurks in the background. That “core issue” was raised by the detainees and has yet to be resolved. But it is remarkable how little emphasis was given to that topic in the story.
And regarding that core issue, as one who is not an expert on this issue, there is one thing that has confounded me about according Geneva Convention status to these detainees. If they are to be accorded the protections of the Geneva Conventions (as indicated by the Supreme Court), do they not also suffer the similar fate of POWs in other respects, namely, that they be accorded the Geneva Convention right in Article 118 to be “be released and repatriated without delay after the cessation of active hostilities.” Do those who seek to apply the humane treatment provisions of the Geneva Conventions to these detainees also recognize application of the prolonged detention provisions?
The adminisrtion has in fact DENIED POW status under GC III to these detainees, and GC III is the ONLY authority for indefinite (NOT “prolonged”) detentions. The prisoners at Guantanamo are being treated as convicted criminals not prisoners of war. The efforts of Gen’l Hood to improve their conditions does not change the fact that the conditions of their detention are inherently unlawful and abusive. As it stands, there is one intact lower court opinion (Judge Robertson’s DDC Hamdan opinion) which states that all detainees are entitled to POW status under GC III art. 5 absent an art. 5 hearing on their status. That is currently pending in the D.C. Cir. on remand. Thee is also a partly intact DDC opinion by Judge Green (In re Guantanamo Detainee Cases) pending in the D.C. Cir. on appeal. The holding there was that all detainees are entitled to the protections of the 5th amendment to the Constitution; the part that didn’t survive Hamdan was the secondary holding that Al Qaeda detainees had no Geneva protection at all. The most basic requirements for POWs under indefinite detention is that they must be housed in conditions no worse than the troops who guard them,… Read more »