Court Denies Access to Justice: Yes, Guantanamo Again…

I decided to put this post in the “International law” category, but also in the “World politics”, because of my sincere opinion that this is far from being simply matter for international lawyers to discuss, but that this is for a long time a political issue par excellence. Yesterday, an US federal Court of Appeals decided that the court lacks jurisdiction to hear any habeas corpus appeal by any of the Guantanamo detainees.

When I read a decision in it’s integral version, I will give my “precious legalistic opinion” on this, but for the time being, I want to share that in my opinion, this is just another outrageous decision that goes against fundamental civilized values American society is built on.

Let me remind that the habeas corpus falls under the very first set of rights people asked their governments to secure, and that it is based on the simple paradigm that no state body may hold anyone arbitrary, without giving that person a right at least to challenge lawfulness of his/hers detention. These rights today fall under hard core rights of international law of human rights, the rights which can not be denied under any circumstances.

The situation is this: American Congress enacted a law (Military Commissions Act, 2006), where it is stated that federal courts can not review habeas corpus claims by prisoners held outside US territory. Technically, Guantanamo base is outside US territory, but in practise, this base is under effective control of the US army. Since it is under effective control of the US army, normally, prisoners could not challenge lawfulness of their detention in front of any court but the US one. With this law, however, US Congress has removed this possibility, because they are prisoners “held outside the US as enemy combatants”. The concept of “enemy combatants” is a separate issue which deserves special attention. In the outcome, the prisoners in Guantamo are denied for not just “proper”, but “any” access to justice. To put in more clear view, Americans can do whatever they want with these detainees, there is no civil court they can complain.

Where they can complain? Well, those are famous military commissions. The trouble with these is that the US Supreme Court twice ruled that prisoners can file a habeas corpus petitions challenging grounds of their detention. After both rulings, the Congress changed the law, again imposing limitations to this possibility.

What else can be said on this. Well, the most important thing actually: Nothing of this would not be so strange and outrageous, if “the greatest of all democracies in this world”, “the country – role model of democratic world”, is not the cause of all these human rights violations. Let me remind that this is not just an issue of denial of justice or arbitrary detention, but also an issue of torture and other ill-treatment. Let me refer to the Amnesty report: “One only has to imagine what would happen if another government captured a US citizen and held him indefinitely for years on end while denying him this basic right to challenge his detention.”

All in all, this issue will go to the Supreme Court once more. I am sure that no one will know at the end what was this all about. Another possibility is that American authorities will express regrets 50 years after, like they did in regard to American citizens with Japanese origin during the World War II, who were held in an American version of concentration camps (just because they were with Japanese origin), on the grounds that they were considered a threat to national security.

In the mean time, some people will be ceased for 10 or more years of their lives. Well, what the hell: al Qaeda needed to hit those towers… Refer to them for Guantanamo.