Up in Limbo
The Harvard Crimson Opinion
November 19, 2003
On a tiny strip of
land on the southeastern coast of Cuba, 600 men wait. They wait
for a trial, for a lawyer, even for a charge against them. These
men, most of whom U.S. military forces captured in Afghanistan
and Pakistan over the past two years, have been denied their basic
Last week, the Supreme
Court made a bold move by agreeing to hear two cases brought by
such prisoners. The Court will have the opportunity to set an
extremely important legal precedent regarding the treatment of
enemy combatants, who are protected by the Geneva Convention.
In Rasul v. Bush and al Odah v. U.S., the Supreme Court must take
a firm stance to ensure that our government lives up to the high
standards of moral and legal behavior it claims to have. We urge
the justices to look beyond White House and Justice Department
manipulations and allow the prisoners in Guantanamo all due legal
The two cases before
the court involve the legality of the United States' creation
of an extrajudicial system in Cuba. U.S. Solicitor General Theodore
B. Olson provided the main tenets of the government's position
in the Rasul case. According to his brief, the prisoners should
not be considered prisoners of war. This argument is dubious at
best. These prisoners-most allegedly linked in some way to Taliban
forces-ought to be classified as POWs and afforded the rights
called for by the Geneva Convention.
Some have argued
that because these men are not fighting for a nation, the POW
label does not apply. But if America is embroiled in a "War
on Terror," the logic should be consistent. The U.S. is battling
against global terrorism that knows no state boundaries, and new
definitions of old ideas such as POWs are badly needed. Though
the world community is different from the one that gathered in
the Geneva Convention in 1949, the principles of human and civil
rights have not changed.
the prisoners are being held on a piece of land that the U.S.
leases, not owns, the government claims that it does not have
to provide the same legal resources as it would on American soil.
The precedent for this justification is a 1950 case in which the
U.S. detained German prisoners in China; the Court then ruled
that there was no legal obligation to afford them access to the
The situation in
Guantanamo developed quite differently. While the U.S. could have
moved the prisoners to any number of military facilities, it specifically
brought them from Afghanistan and Pakistan to Cuba. Guantanamo
is being used as a back door to avoid the federal requirements
for the just treatment of prisoners. That its military facility
is leased offshore is no excuse for the U.S. to flout due process.
If the U.S. wants
other nations to play by the rules laid out by the Geneva Convention,
it must follow those rules itself. To protect American troops
and citizens abroad, the U.S. depends on cooperation from other
governments in assuring that Americans receive just treatment.
Only by applying those ethical standards itself can the U.S. have
the moral authority to defend its citizens from future mistreatment.
U.S. hypocrisy is obvious to the world-its feeble "do as
I say, not as I do" behavior will not help gain the trust
of nations and people with which the U.S. hopes to build constructive
To be sure, the military
and judiciary should not act so loosely as to endanger our citizens
by allowing terrorists to escape from interrogation and punishment.
But principles of fairness and human rights must not be trumped
by blind fear. The U.S. owes the prisoners of Guantanamo access
to the legal avenues required by the Geneva Convention. And, just
as important, the U.S. owes itself the moral courage to do the