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Why Care About Guantanamo?

Tell most Americans about a prison on a tropical island just south of Florida where an inmate, jailed for over a year, does not know what he's accused of, and they would guess: Cuba. But few would conjure up the U.S.-leased military base on the 45-square-mile southeast tip of the island. Although by no means a Chateau D'If or Elba, the Guantanamo Bay Naval Base, or Gitmo, has served as a detention and refugee camp for the last decade.

Military commissions, or trials, are about to start up, however, both for detainees within the U.S. and those at the base. On Thursday, President Bush designated six al Qaeda suspects, some from within the U.S., to be tried before U.S. military commissions, defense officials announced.

Thus, the trials will begin shortly, most likely at Gitmo. CBS's David Martin reported on July 3 that one of the suspects is Australian David Hicks, now held in Gitmo. The others include suspects from Britain, Yemen, Sudan and Pakistan.

The saga began in January 2002 with the building of more permanent camps at the base, first Camp X-ray (from which the prisoners have been moved) to the current Camp Delta and Camp Iguana (for the three juvenile prisoners). Prison conditions have been harshly criticized by human rights organizations who point to the two dozen suicide attempts. There was also a rare display of divisions in the Bush administration, when a letter from Secretary of State Colin Powell to Secretary of Defense Donald Rumsfeld was leaked that pointed to U.S. allies' concerns about the conditions of the detainees.

Until today, Gitmo has been serving as the prison camp for the Afghanistan detainees, some 680 prisoners from the recent conflict, from over 40 countries of origin -- some of whom have been there over 500 days without being charged with a crime, without the right to a lawyer, and without knowing if they will be tried.

Things will heat up in the next few months, with the beginning of military commissions, or trials, the secrecy attached to the trials, and the possibility of the death penalty and execution chamber at the base.

War Booty
Teddy Roosevelt is largely responsible for the establishment of the base, which was leased in virtual perpetuity (not in a legal sense) as "war booty" to the United States by Spain at the end of the Spanish American War in 1898. When the leases were signed in 1903, the United States also was given Guam, the Philippines, Puerto Rico and three other military bases in Cuba for the "payment of $2,000 in gold coin" (later adjusted to market value). Guantanamo was the only base that remained. The Guantanamo Bay Naval Base was leased to the U.S. in an agreement -- unlike other historic agreements -- that requires both parties (the U.S. and the Government of Cuba) to agree to end the lease, giving the U.S. a quasi-permanency on Cuban territory.

Oddly, with all the outright aggression between the U.S. and Cuban President Fidel Castro, from the Bay of Pigs, Cuban Missile Crisis in 1962, to assassination attempts in the 1970's, the base has remained intact with few complaints -- other than a few periods when the Cuban government turned off the water.

Refugees and Detainees
During the mid-1990's, the base began to house refugees from boatlifts in the Caribbean. When I was on the Base in April 1995, more than 22,000 Cuban refugees were being held in makeshift camps which housed the Cuban and Haitian refugees. The Haitians were later returned to Haiti and the Cubans came to the U.S.

Curiously, I flew into the Base directly from Fort Lauderdale with Defense Department clearance on their authorized charter, Fandango Airlines. Today, reporters who travel to Guantanamo fly from Puerto Rico on a military plane and pass though customs on return -- a certain change that appears to acknowledge that the base is on foreign territory.

Reporting on the detainees of both the Afghan war and the Iraq war and their legal status, I am most frequently asked the question: How can the U.S. take foreign nationals to a U.S. base with no rights?

The answer is a complex web of White House decisions in the domestic and foreign war on terror that has many of U.S. allies rankled. After the Afghanistan War in 2001, the war on terror came to Guantanamo when the U.S. government began to transport prisoners suspected of being al Qaeda operatives to the Naval Base. The first step was determining which prisoners were al Qaeda and which were Taliban, in order to determine if they were "privileged" or "unprivileged" under the 1949 Geneva Conventions.

Prisoners of War and Detainees
After bringing the prisoners to Guantanamo, the Defense Department (along with several other government agencies including the FBI, the State Department and the CIA) had to create what are known under the Geneva Conventions as Article 5 Tribunals to determine which prisoners are given POW status. Not mentioned in the Geneva Conventions, an unprivileged or unlawful combatant is defined in the Hague Conventions, dating back to 1907 but not U.S. law until the Supreme Court case, Ex Parte Quirin.

The clearest distinction between acts, such as murder, committed lawfully by soldiers in battle, and unlawfully by civilians, is stated in that case, where "a soldier in uniform who commits the acts mentioned would be entitled to treatment as a prisoner of war; it is the absence of uniform that renders the offender liable to trial for violation of the laws of war."

Ironically, the difference between who is a legitimate enemy and who is not under U.S. law starts with Benedict Arnold at a time when the United States and France were on one side of the conflict and the British Army on the other. During the Civil War, military commissions were used for violations of the laws of "civilized war."

Some of the issues were determined, at least for the time being, by the U.S. Court of Appeals for the D.C. Circuit in a mid-March ruling, Odah vs. United States, that held that the suspected terrorists and Taliban fighters held at the base in Guantanamo Bay, Cuba, do not have legal rights under U.S. law and U.S. courts may not review their detentions. "We will bring this case to the Supreme Court," the Kuwaiti detainees' family lawyer, Thomas Wilner told me.

International Problems
Contentious issues on war crimes also are a source of friction among the coalition partners for the Iraq conflict as well; the British Parliament has warned Prime Minister Tony Blair that it would be against British law to turn over POWs in British custody to the United States because of the death penalty.

Upcoming Trials And An Execution Chamber?
This past May, the Defense Department and the newly-created Office of Military Commissions, drafted a list of al Qaeda operatives proposed to stand trial in the Military Commissions in a courtroom in Guantanamo. The death penalty and an execution chamber are being discussed as possibilities. A chief military prosecutor has been chosen, Army Colonel Frederic Borsch, and a lead defense counsel, Air Force Col. Will Gunn and civilian counsel will be available, if they meet the criteria and are willing to accept serious limits on their representation.

Although the details of how these prisoners will be tried has become mired in complicated legal issues, the outlines of the trials, the rules, and the controversy is pretty straightforward. President Bush signed a Military Order in November, 2001 authorizing the military commissions (trials); Secretary of Defense Donald Rumsfeld created Military Commission Order No. 1 (which sets the rules for the trials) in March, 2002. Then, in February, 2003, the Defense Department issued instructions detailing the 18 war crimes, and in April, the General Counsel to the Defense Department, William Haynes, issued the first in a series of instructions on how the trials would be conducted. Finally, in May of this year, the officers in charge of the trials were appointed.

The problems that lawyers and human rights groups have with the commissions are long and question both the premises and the procedures. The Association of Criminal Defense Lawyers questioned the "underlying premise" of the Commissions, saying that the Congress, not the President defines crimes. U.S. court rulings have made clear that Gitmo is part of Cuba's sovereign territory, but it is outside the jurisdiction of U.S. courts. Critics have asked why basic principals of international and U.S. law, such as notice and an ability to be heard, are not applied.

The trials will be a bellwether for the American public as the some of the domestic laws in the terrorism war were pressing the question of where are the borders of liberties and security. Stay tuned.

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