Since 9/11, the United States has held prisoners from Iraq, Afghanistan and other terror training sites at the US military base in Guantanamo Bay, Cuba. The number of prisoners was over 700 at its highest point and now is just over 400. Many opponents of the Bush Administration in the United States and around the world believe that the continued detention of the Gitmo detainees is immoral and illegal under US and international law.

Much of the opposition regarding US law focuses on the lack of habeas corpus rights for detainees. Habeas corpus is the right to have a prisoner appear before the court and be shown why he is detained.

There are several problems with applying habeas corpus rights to the Gitmo detainees. They are not US citizens. They were not captured in the United States. They are not prisoners of civilian authorities. The detainees were captured by the US or allied military forces in a foreign country while they were fighting a war even though they were not part of an organized military unit and were not wearing military uniforms. This means that they are not subject to US civilian law and do not have the rights of US citizens. The few detainees who are US citizens would have rights under US law, especially those captured within the US.

Treatment of prisoners-of-war is regulated by the Geneva Convention. During WWII, large numbers of German and Italian prisoners were held in prison camps in the United States. None of these prisoners was given habeas corpus rights and all were held prisoner until the end of the war. Those who were found to be guilty of war crimes were given military trials.

Gitmo detainees do not qualify for prisoner-of-war status under the Geneva Convention, however. Because the detainees were not part of organized military units, they would only be considered POWs in very limited circumstances. The Convention does state that "Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces without having had time to form themselves into regular armed units" are lawful combatants "provided they carry arms openly and respect the laws and customs of war" (Article 4 of the Third Geneva Convention).

Many of the Gitmo detainees were members of paramilitary groups prior to the Coalition invasions of Afghanistan and Iraq. Many others later became members of militia or terrorist groups much later and had time to organize. This would exclude

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