http://www.theage.com.au/articles/2002/05/21/1021882051530.html

Locked away in Guantanamo Bay

By Gay Alcorn
May 22 2002

If Australian officials had visited America's terrorist prison camp
at Guantanamo Bay, Cuba, a few weeks ago, they would have
found open-air, cage-like cells hurriedly built to hold hundreds of
men captured during the war in Afghanistan. Camp X-ray, as it
was called, had a decidedly temporary feel.

But by the time officials from the Australian Federal Police, ASIO
and the Australian embassy in Washington arrived at Guantanamo
last week, the 384 captives from 34 countries had been moved to
Camp Delta, a permanent prison of individual cells, built to hold as
many as 2000 prisoners for months, years, or indefinitely.

The families and lawyers for the two Australians at Camp Delta
fear indefinite detention is exactly what awaits Adelaide-born
David Hicks, and Mamdouh Habib, of Sydney, despite the Australian
Government repeatedly saying it would prefer that its citizens
return to face justice in Australia.

The families believe the Australian Government has acquiesced to
detention without charges - anathema to legal principles in both
the US and Australia - because it has found that the men have
committed no offences under Australian law.

According to Hicks' lawyer, Stephen Kenny, the Australian
Government has "washed its hands" of his client. The Australian
officials at Guantanamo Bay were there to interview the two
Australians for intelligence and law enforcement purposes, but it
is believed it is extremely unlikely the men will return to Australia
to face trial. Unless, under interrogation, they admitted to a
crime - in which case authorities will have to return with a lawyer
to represent the men - Hicks and Habib will sit, possibly for the
rest of their lives, in a prison in the Caribbean.

US Secretary of Defence Donald Rumsfeld has made clear that
the White House would "prefer to only give detainees back to
countries that have an interest in prosecuting people that ought
to be prosecuted".

He told London's Daily Telegraph in February that the US would not
accept governments "simply turning them loose, putting them
back out on the streets and having them go get more airplanes
and flying into the Pentagon and the World Trade Centre again".
Australia appears reluctant to bring them back, because it would
have little choice but to set them free.

The issue here, says the Centre for Constitutional Rights in New
York, is the US Government, a persistent critic of other countries'
practices of detention without trial, deciding on its own how long a
captive should be held without facing charges.

The centre's Michael Ratner says indefinite detention without any
judicial review of an executive decision is "quite incredible". Ratner
is involved in a lawsuit on behalf of the family of David Hicks and
two British captives.

Hicks, who allegedly trained at an al Qaeda terrorist camp in
Afghanistan, was captured by US-backed Northern Alliance
fighters in November, and brought to Guantanamo in January.
Habib, 46, was arrested in Pakistan in October and sent to Egypt
for five months before being transferred to Cuba early this
month.

The families of both men deny they are terrorists. Hicks' father,
Terry, says the 26 year-old former jackaroo is a Muslim convert
who fought with the Taliban regime against the Northern Alliance;
Habib's family says he has nothing to do with terrorism.

Foreign Affairs Minister Alexander Downer has made it clear that
the government is unconcerned at criticism that it has abandoned
its citizens. People who "muck about" with groups like al Qaeda
were "bound to get into trouble", he said.

But does getting into trouble mean being imprisoned without
charge? When the first inmates arrived at Guantanamo in
January, the focus was on the possibility that some would be tried
by President George Bush's special military tribunals, which can
impose the death penalty.

More than six months after the tribunals were proposed, no one is
facing a military trial. Zacarias Moussaoui who, the US says,
planned to be the 20th hijacker on September 11, was charged in
a civilian court.

What received less attention until recently was the
administration's plan to detain the men for as long as it deemed
they posed a threat to American security. The White House is
clear about its intention to change the established rules of war.
"What the administration is trying to do is create a new legal
regime," Deputy Assistant Attorney-General John Yoo said in a
speech earlier this year.

The old legal regime is the Geneva Convention, designed to protect
legitimate prisoners of war. Under the convention, it is not a
crime to be a member of an enemy's army, and PoWs are free to
go home after the end of hostilities unless they are charged with
a war crime or a crime against humanity.

But the US administration does not classify the Camp Delta
prisoners as PoWs but as "unlawful combatants" because they did
not, as the convention specifies, wear a recognisable uniform,
follow a clear command structure or carry arms openly.

The White House argues that the Geneva rules were designed for
wars between states, and that the struggle against secretive,
furtive terrorist organisations is no ordinary war. "In the military
system, people are detained usually until the end of the war, and
then they are released, they go home," Yoo said.

"Does that make sense in this kind of a conflict, where the
individuals in question who are being detained are members of
terrorist organisations? Does it make sense to ever release them
if you think they are going to continue to be dangerous even
though you can't convict them of a crime?"

Human Rights Watch, a respected human rights groups, says the
administration has a point. The US Government has refused
Canberra's request to give Hicks and Habib access to a lawyer
but, under the convention, PoWs or unlawful combatants can be
held until hostilities cease and have no right to see a lawyer until
they are charged.

The group's Washington representative, Tom Malinowsky, said
Taliban fighters probably would be PoWs under the convention and
al Qaeda fighters probably would not. But in both cases, the US
had a right to detain them until hostilities were over, but no right
to jail them indefinitely.

Where Human Rights Watch believes the White House is setting a
dangerous precedent is in choosing when it will recognise the
convention and when it will not.

The Geneva rules say a "competent tribunal" must decide whether
a prisoner is a legitimate prisoner of war or not, whereas the US
administration is making up its own mind without reference to
international rules.

If the detainees must be released at the end of hostilities, when
will that be? "That's the problem," says international lawyer Leon
Friedman. "Until they declare their war against terrorism is at an
end, they claim they can detain them."

Friedman acknowledges that there is an "unpleasant precedent"
for jail without trial. The British used it in the early 1970s for
suspected terrorists in Northern Ireland and the European Court
of Human Rights backed the British practice, as long as the
detentions were reviewed periodically.

The Bush administration is reportedly drawing up similar
procedures, as well as considering making just being a member of
al Qaeda grounds for prosecution before a military tribunal.

There is growing international dissent about what the US is doing
at Guantanamo. The traditional remedy against arbitrary
detention is a writ of habeas corpus, under which a prisoner must
be brought before a court and told what charges he faces.

The family of David Hicks launched a habeas corpus case in
February, as have the families of 11 Kuwaitis. The former justice
minister of Qatar, Najeeb Nuaimi, is gathering a legal team to
represent the families of 70 detainees, in part to put political
pressure on the White House to clarify the prisoners' legal status.

The problem with the lawsuits is that Guantanamo Bay, which is
leased by the US from Cuba, is not American territory, which
probably puts the prisoners beyond the reach of US justice.

It has not gone unnoticed that the US is not treating its own
citizens the same way it is treating foreigners. John Walker Lindh,
21, the "American Taliban", has a date set for his trial on 10
charges, including conspiracy to murder Americans and to provide
support to terrorist organisations. If convicted, he would spend
the rest of his life in jail. In the meantime, his lawyers scour the
evidence and he is allowed visits from his family.

Lawyers such as Friedman say the charges against Walker, a
Muslim convert who, like Hicks, travelled to Afghanistan months
before the September 11 attacks, will be hard to prove; there is
no evidence he shot at or tried to kill any Americans. "I think it's a
very thin case . . . but you have to factor in the fact that the
whole sentiment of the country is against him," Friedman says.
Still, Walker will get his day in court.

At Guantanamo, Camp Delta is surrounded by green netting,
preventing journalists from seeing the inmates, even from a
distance. Occasionally, the prisoners call out. Recently, one
captive yelled: "We need the world to know about us. We are
innocent here in this cage. We have no legal rights, nothing."

Gay Alcorn is Washington correspondent for The Age.