February 20, 2004

Panel questions legal aspects of Guantanamo prisoners

In response to questions about the operation of the war on terror, the Human Rights Program sponsored a panel discussion on Wednesday to discuss the legal aspects of the detention of terrorist suspects and enemy combatants at the U.S. base in Guantánamo Bay, Cuba.

About 650 detainees from over 42 countries, said to be Al Qaeda or Taliban fighters, are being held at Guantánamo. Since the war in Afghanistan, some detainees have been held for over two years without access to lawyers or families.

Moderated by Susan Gzesh, director of the Human Rights Program, the discussion at the International House featured three speakers from the law school, and it was co-sponsored by the ACLU at University of Chicago, the ACLU at the Law School, the Chicago Society, the Center for Middle Eastern Studies, the South Asia Language and Area Center, and the International House Global Voices Program.

Joseph Margulies, a visiting lecturer at the law school, is currently legal counsel for four detainees at Guantánamo. He has helped bring two appeals to the Supreme Court concerning the legality of such detainees. The cases question the government's decision to label them as enemy combatants, which denies them POW rights set by the Geneva Conventions.

Margulies is also involved in two other cases dealing with U.S. citizens held as enemy combatants: Rasul vs. Bush and Odah vs. U.S. et al.

"Guantánamo presents the question whether the judiciary has any role in the interpretation of the war on terror," Margulies said, adding that the detainees of Guantánamo have been refused "process," the rights that citizens in judicial systems in the British tradition enjoy when they are arrested.

"They have no process, no actual charges, no opportunity for a trial, and no counsel," he said. "The federal government has stated these foreign nationals were detained outside the ‘ultimate sovereignty' of the U.S., and because of that, no American court may have jurisdiction."

Margulies suggested that judicial courts examine and interpret their role in war, saying the detainees want a day in court to defend themselves and prove their innocence.

"I am not suggesting that they will then be expatriated back to their home countries or released," Marguiles said, "but simply to present their case and to be able to scrutinize the executive actions during the war."

Derek Jinks, a visiting professor at the law school, discussed Guantánamo in terms of its international significance, focusing on how the U.S. government's detention of the terror suspects might violate its obligations under international law.

Eric Posner, the third panelist and a professor at the law school, talked about the correlation between these cases and human rights. Formerly a United Nations representative for the South Asian Center on Human Rights, Posner said that Jinks and Margulies implied that simply bringing the issue to court would be vindication for the protection of law for the general public. In contrast to the other two panelists, Posner defended the U.S. military's actions, saying the United States has basic sovereignty over the base at Guantánamo.

He said the Supreme Court has historically held that if enemy soldiers are caught on foreign ground, it does not have jurisdiction over these soldiers. He also asserted that because of the war on terror, the U.S. could justifiably violate international laws for security and practicality reasons.

Gzesh spoke at the end of the discussion, inviting the 75 students and faculty in the audience to attend another panel discussion about Guantánamo on March 31. The discussion, to be held at the International House, will focus on humanitarian aspects of the war on terror.