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Locked 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 judicial rights.

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 rights.

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.

Moreover, because 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 federal courts.

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 relationships.

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 right thing.

 
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