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Guantanamo inmates to lose all rights
US law proposal attacked by campaigners
By David Rose
11/13/05 "The
Observer" -- -- Human rights campaigners are calling
it the 'November surprise' - a last-minute amendment smuggled into a
Pentagon finance bill in the US Senate last Thursday.
Its effects are likely to be devastating: the permanent removal of
almost all legal rights from 'war on terror' detainees at Guantanamo
Bay and every other similar US facility on foreign or American soil.
'What the British law lord Lord Steyn once called a legal black hole
had begun to be filled in,' said the British lawyer Clive Stafford
Smith, speaking from Guantanamo, where he represents more than 40
detainees. 'It looks as if it is back, and deeper than before.'
If the amendment passes the House of Representatives unmodified, one
of its immediate effects is that Stafford Smith and all the other
lawyers who act for Guantanamo prisoners will again be denied
access, as they were for more than two years after Camp X-Ray opened
in 2002.
The amendment was tabled by Lindsay Graham, a South Carolina
Republican, and passed by 49 votes to 42. It reverses the Supreme
Court's decision in June last year which affirmed the right of
detainees to bring habeas corpus petitions in American federal
courts.
As a result, about 200 of Guantanamo's 500 prisoners have filed such
cases, many of them arguing that they are not terrorists, as the US
authorities claim, and that the evidence against them is unreliable.
None of them were given any kind of hearing when they were consigned
to Guantanamo. Instead, the Americans unilaterally declared they
were unlawful 'enemy combatants', mostly on the basis of assessments
by junior military intelligence personnel, who were often reliant on
interpreters whose skills internal Pentagon reports have criticised.
The Supreme Court's 2004 ruling also meant that the handful of
prisoners facing trial at Guantanamo by military commissions, which
do not follow the normal rules of evidence and due process, have
been able to file federal challenges to their legality.
Last Monday, the Supreme Court announced it would review the
commission rules by agreeing to take the case of Salim Hamdan, a
Yemeni detainee and allegedly once Osama bin Laden's driver. The
Graham amendment, if passed, will stop this case, and the
commissions will operate without further scrutiny.
Michael Ratner, the director of New York's Centre for Constitutional
Rights which brought the 2004 case, said the amendment 'will create
a thousand points of darkness across the globe where the United
States will be free to hold people indefinitely without a hearing,
beyond the reach of US law and the checks and balances in our
constitution.'
A senior Pentagon lawyer who asked not to be named said that the
Graham amendment will have another consequence. The same Pentagon
bill also contains a clause, sponsored by Graham and the Arizona
Republican John McCain, to outlaw torture at US detention camps - a
move up to now fiercely resisted by the White House. 'If detainees
can't talk to lawyers or file cases, how will anyone ever find out
if they have been abused,' the lawyer said.
Most of the evidence of abuse at Guantanamo has emerged from
lawyers' discussions with their clients.
Human rights groups and leading figures from the US military are
urging the Senate to reconsider the amendment next week. Among those
who have written open letters are John Hutson, the former Judge
Advocate General of the US Navy, and the National Institute for
Military Justice, a think-tank for military lawyers.
© Guardian Newspapers Limited 2005
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