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by Martin W. Schwartz

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At this point, they have NONE other than what the President and/or the Secretary of Defense decide to give them. Guantanamo detainees are classified as illegal combatants and NOT as prisoners of war. As such, the protections of the Geneva Conventions (to which the USA is not a signatory, but which it observes) are not available to them.

Because they are held in a facility that is not on American Soil, (Guantanamo is Cuban Territory leased to the U.S. in perpetuity) the detainees are not afforded access to our civilian legal system (the federal district and appellate courts). As the base is leased from Cuba under an agreement that Cuba cannot exercise any sovereignty over it, they have no access to what passes for a legal system in Cuba. The Defense Department and the Justice Department have determined that detainees held as unlawful combatants are entitled to be tried by special military tribunals (last used during WWII to try war criminals in the post-Pacific Theater of Operations and found to be legal by the U.S. Supreme Court). This gives them access to legal counsel (attorneys from the Judge Advocate General Corps), the right to present a defense and to call witnesses and obtain documents (all subject to the dictates of national security - they have no access to covert operatives, nor can they call other detainees as witnesses, nor obtain most classified documents), and the right to appeal any conviction to the Secretary of Defense and the President.

To date, neither the U.S. Supreme Court nor the Congress has decided to grant access for these detainees to the civilian legal system, with one exception. If the detainee (like Jose Padilla) is an American Citizen, he/she must be removed from Guantanamo and turned over the the U.S. Bureau of Prisons, where they will be held in a super maximum-security (Super-max) civilian federal prison pending trial before a federal district court. In such a proceeding they have all of the rights afforded to any other criminal defendant. Upon conviction they will be incarcerated in an appropriate federal prison, and their case is subject to the normal federal appellate processes. If a death sentence is imposed, they will be executed, after appeals (if unsuccessful) according to the same protocols established for any other federal prisoner on death row.

While many decry these limited rights of foreign detainees held in Guantanamo, our legal system simply does not provide for any other process. That would require federal legislation or a ruling (unlikely to happen) from the U.S. Supreme Court that would extend greater rights to these individuals.

Learn more about this author, Martin W. Schwartz.

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