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Protecting Rights after Guantanamo
By Erwin Chemerinsky and Stephen Yagman*
San Diego Union Tribune
July 1, 2005The call to close the military prison at Guantánamo Bay, Cuba, is well-intentioned, but seriously misguided unless steps are taken to ensure that American courts retain jurisdiction over the detainees to protect their rights. In recent weeks, there has been growing sentiment to close the Guantánamo prison in light of reports of serious abuses there. But closing this facility likely would mean that the prisoners would be shipped to military prisons throughout the world, often run by other countries. Conditions likely would be just as bad, if not worse, and American courts probably would have no jurisdiction to protect the rights of the detainees.
After a legal battle lasting more than three years, American courts finally are in a position to protect the rights of the Guantánamo detainees. It is crucial that the jurisdiction of these courts not be lost if the facility is closed down and the prisoners transferred elsewhere. The process of gaining any protection in the courts for the Guantánamo detainees has been prolonged and arduous. We filed the first lawsuit on behalf of the Guantánamo detainees in January 2002, when the first reports emerged of the United States bringing prisoners to Guantánamo and housing them in small cages.
In this case, and in others brought by Guantánamo detainees, the Bush administration took the position that no court in the country could hear detainees' claims, even if they are held forever and even if they are tortured. We finally prevailed on Dec. 18, 2003, when the 9th US Circuit Court of Appeals ruled that the federal court could hear the habeas corpus petition of our client. The US Supreme Court came to the same conclusion in another case in June 2004. These cases are now pending before the federal court of appeals in the District of Columbia on the question of whether the government is violating the rights of those being held at Guantánamo . If the plaintiffs in these cases prevail, finally the Guantánamo detainees will be accorded the due process that should have been provided 41 months ago.
The government's behavior in Guantánamo has been unconscionable. There have been widespread reports of torture and abuse. We have represented detainee Salim Gherebi for three years and still have no idea as to what the charges are against him. Nor have we been permitted to communicate with or visit him. None of the detainees has received any semblance of due process. The government characterizes those present as dangerous terrorists, but it has not proven this accusation as to even one of the detainees. All of this makes it understandable that there is growing sentiment to close the Guantánamo prison facility. But such proposals must focus on what will happen to the detainees. Already the government has engaged in "renditions," sending some of the Guantánamo prisoners to prisons elsewhere in the world.
Surely the government will contend that those moved from Guantánamo to other nations do not have the ability to bring their claims in federal courts. The cases now pending in the federal courts on behalf of the detainees likely would be dismissed. If Guantánamo is closed, Congress should insist, and enact legislation if necessary, that every prisoner at Guantánamo receives a fair hearing to determine whether there is a basis for continued detention. Congress should ensure that those held in Guantánamo be transferred only to facilities where there is protection for all of the rights provided by international law. Also, these individuals must continue to have access to the federal courts to ensure protection of their rights.
More than 650 individuals have been imprisoned at Guantánamo. Some have been there in solitary confinement for three and one-half years. According to Secretary of Defense Donald Rumsfeld, the plan is to keep them there forever. This is outrageous, but it would be even worse to close Guantánamo and simply imprison the individuals elsewhere with perhaps no possibility for protecting their rights.
About the Author: Chemerinsky, a law professor at Duke University School of Law, and Yagman, a civil rights lawyer who wrote the play "Guantánamo Act IV," brought the first suit on behalf of the Guantánamo detainees and continue to represent a detainee.
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