detaining of the captives from Afghanistan

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Introduction

The invasion of Afghanistan by the US following presidential decree was aimed at weeding the country of Islamic fundamentalists who operated under the auspice of Taliban. The aim of the invasion was to ensure that the US enemies, including Al Qaeda were perused beyond the American borders to their hideouts so as to dismantle all the terrorist cells. However, since the invasion, the US has not scored a major victory as the terrorists regroup and carry out suicide and coordinated bomb attacks under the pretext of retaliatory insurgencies to revenge for the violation of human rights in the country. As a result, several legal issues relating to the US and international laws have been cited in relation to the invasion. These have led to global security and debate on way American authorities deal with the war on terror and the war captives. These issues are discussed below.

Discussion

Since the incident of 9/11, there have been divergent debates as to which law regime should be applied in the fight against terrorism. Nevertheless, there are different American laws which can be applied in the illegal detention’s case. One of such laws is the humanitarian laws. This law is applicable in this case as the challenges faced by the detainees revolve around such as issues as whether or not the detainees should have their fundamental rights or not. These laws govern issues relating to armed conflict and handling and management. The humanitarian laws under the Geneva Convection require that the basic human rights are safeguarded even under armed conflicts. Through the military order made by president Bush to guide the trial of the captives, there were instances of violation of the Geneva Convention Relative to the Treatment of Prisoners of War (GPW) , as the detainees had the rights infringed as opposed to the military members who were faced with similar charges (Wallach, 2003). According to Elsa and Kim (2007), however, the American government through the CIA violated humanitarian rights by having the captured Afghan fighters detained without trial . The Bush regime on the other hand based its argument on the fact that human rights laws are not applicable in the case of the captured combatants. However, the Supreme Court, in Hamdan v. Rumsfeld, argued that the detainees are subject to the humanitarian law. The other law that is applicable in the detainees’ case is the international laws that have been ratified by the US. Since the US ratified the Geneva Convention, it is expected that the country’s security agents adhere to all the tenets and spirit of the law. This argument is based on the fact that an international treaty that has been ratified is read as part of the domestic law. However, the CIA violated this law, specifuically Common Article 3, which demands that the war captives be guaranteed minimum protection even in the hands of an enemy (Elsa & Kim).

The other applicable law is the Detainee Treatment Act of 2006. This law was passed by the congress in response to the reported wide scale violation of human rights in Afghanistan. The law was aimed at ensuring that the Al Qaeda fighters are safeguarded from undue mistreatments. This legislation is relevant to the issue relating to the detention of the Afghan fighters as it outlawed any form of inhuman handling of detainees, cruelty and degrading handling of the captives.

Case law under the US justice administration system is also applicable in the Afghan detention case. This is because court rulings relating to a particular case can be used not only to determine subsequent cases but also as a source of laws. The Hamdi v. Rumsfeld, ruling is one such case laws, as it overruled the executive’s argument that war captives were not entitled to minimum rights as stipulated in the Geneva Convention. At the same time, in the case, legal issues relating to the definition of persons who could be subjected to detention under the global war on terror. The court broadened the definition to include the Taliban as well as any US Citizens who is found to be collaborating with the terrorists to wage an armed war or threaten American security (Patel, 2009). Another case law can be taken from Boumediene v. Bush , where it was ruled that the illegal detentions can be challenged in the United States’ courts (Patel, 2009). Emphatically, Patel (2009) argues that the above two are very significant in the relation to the terrorists’ detention and have greatly influential the opinions of other judges in disposition of later cases. In my view , the previous regime unilaterally applied the presidential powers to deny the detainees their rights and legal assistance. By labeling them as ‘enemy combatants’ to deny them such rights, the practice went against the spirit of humanitarian laws.

Violation of human rights at the foreign site detentions is a major legal issue that has emerged since the invasion of Afghanistan. At the camps, the detainees are subjected to inhumane conditions and mistreatments. In the course of the interrogations, the American secret agents normally subject the captives to physical abuses that result into death. Laws relating to non reviewable presidential authority also raise legal issues with respect to the Afghan detentions. Cites the U.S. Alien and Sedition Acts as legislations which gave the President the authority execute deportation of foreigners who are suspected as being threats to domestic security , even without getting courts recourse/ habeas corpus (Truyol, 2003). According to Patel (2009), there was gratuitous use of the Congress’s Authorization for Use of Military Force (AUMF) and the powers of the Commander in Chief, what led to Obama’s regime seeing to end the US engagement in Afghanistan and drop the ‘enemy combatant’ label.

According to Grimmett (2007), AUMF statute, under the S.J.Res, 23, empowered the president to use all possible military means against the perpetrators of 9/11 attack, including those who masterminded, coordinated and supported it. As such, it can argued that the presidential decrees may be improperly used in situations that may later have large scale and long term legal implications to a country. Another legal issue relate to the role of the Congress in granting and reviewing of US military external engagements and declaration of wars.

Under the US laws, it is required that a defendant or a suspect be allowed to have a lawyer or state attorney. This is aimed at ensuring that an individual does not get unfair imprisonment of punishment because of lack of legal knowledge and procession procedures. However, in the camps, most of the detainees are not allowed to have a lawyer of speak to a lawyer. This is violation of the US law. It can therefore be deduced that the US has been implementing a detention without trail policy in Afghanistan thus going against the constitution. The US criminal laws require that every person is entitled to fair trial irrespective of the crime committed. At the same time, it is not only illegal but also serous violation of human rights to subject one to detention without preferring charges against him.

Conclusion

Though it is universally acclaimed that every person has certain minimum rights which have to be guaranteed at all times, the actions of the previous US regime to operate illegal detention camps go against the tenets of humanitarian issues. Since the war on terror began, the country is known to arrest / capture the Al Qaeda suspects and subject them to undue and inhumane treatments such as physical abuse and denial of food. These centers, based in such places as Guantanamo Bay, Afghanistan, Iraq and other parts of Asia , are used to interrogate the terrorists and have them transferred to different locations with very poor living conditions (Elsa & Kim, 2007). Though it is very important the war on terror be up scaled globally, there is need for objectivity and adherence to the rule of law so that the detainees are entitled to the rights that the laws allow. This way, the public confidence on the war on terror both in the US and Asia can be gained and the retaliatory attacks minimized.

References Elsa, J. & Kim, J. (2007). Undisclosed U.S. Detention Sites Overseas:

Background and Legal Issues. Retrieved August 16, 2010, from HYPERLINK “http://www.fas.org/sgp/crs/intel/RL33643.pdf” http://www.fas.org/sgp/crs/intel/RL33643.pdf.

Grimmett, R. (2007). Authorization For Use Of Military Force in

Response to the 9/11 Attacks (P.L. 107-40): Legislative History. Retrieved August 16, 2010, from http://www.fas.org/sgp/crs/natsec/RS22357.pdf.

Truyol, H., B. (2003). LatCritical Perspectives: Individual Liberties,

State Security, and the War on Terrorism. Retrieved August 16, 2010, from http://www.law.uoregon.edu/org/olr/archives/81/81_Or_L_Rev_941.pdf.

Patel, F. (2009). Who can be detained in the “War on Terror”? The Emerging Answer.

Retrieved August 16, 2010, from HYPERLINK “http://www.asil.org/insights091020.cfm” http://www.asil.org/insights091020.cfm

Wallach, E., J. (2003). Afghanistan, Quirin, and Uchiyama: Does the Sauce Suit the

Gander? Retrieved August 16, 2010, from HYPERLINK “http://www.pegc.us/archive/Journals/Wallach_TAL_uchiyama.pdf” http://www.pegc.us/archive/Journals/Wallach_TAL_uchiyama.pdf.