Issue date: 4/26/04 Section: Opinion

By Paul Wilson

Ah, Cuba. The land of coveted cigars, a dictator with astonishing longevity and 600 "enemy combatants" confined to a U.S. military base - combatants "held with impunity, held without charges" some say.

The disturbing nature in which the Bush administration has confined these prisoners without charging them has finally been taken up by the U.S. Supreme Court, where many hope the prisoners will be granted the right to a federal trial.

Though the desire to limit the president's unchecked power is understandable, extending federal rights to these non-citizens may inadvertently have severe consequences.

The detainees want the protection of the habeas corpus statute, which states that anyone held by the U.S. government has the right to challenge confinement.

Complicating matters, however, is the precedent set by the court after World War II in Johnson vs. Eisentrager, which found that non-citizens confined outside the United States have no access to federal courts. Thus, habeas corpus does not apply.

Guantanamo was officially acquired by the United States in a 1903 lease with Cuba. And years later, a series of treaties - most notably one in 1934 - specified that while America had supremacy at Guantanamo, "ultimate sovereignty" remained Cuba's and that termination of the lease required the signatories of both parties.

Opponents of the Bush administration, however, claim that because Cuba has no authority pertaining to the governing of Guantanamo, the United States truly holds sovereignty, and therefore the courts have federal jurisdiction.

Though the argument contains legitimacy, there is really no legal way for the court to intervene unless it capriciously disregards the lease, the treaties and the precedent of a former ruling.

Recently, some individuals, sympathetic to the plight of captured terrorists, have touted "prisoners of war have the right to a trial." Yes, they do. But another technicality remains. These people are not "prisoners of war;" they are "enemy combatants."

Under the Geneva Convention a "prisoner of war" is a member of a country's standing military. Now can anyone identify what standing military al-Qaida, Hamas or any of the other Islamic groups belong to? Answer: They have no affiliation. Hence the name, terrorist
"organization."

Continued...

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