Last month the Bush administration suffered two legal defeats regarding its shameful policy of denying due process to detainees held at Guantanamo Bay.
The United States Supreme Court ruled that the Guantanamo detainees had a constitutional right to petition a federal court to challenge the basis of their continued detention.
In another rebuff to the Bush administration's disregard for due process, a federal appeals court ruled that Guantanamo detainee Huzaifa Parhat, who has been detained for six years without knowing the charges against him, was improperly labelled an "enemy combatant."
These court rulings, and several other previous rulings, clearly reject the Bush administration's violations of the human and constitutional rights of the Guantanamo detainees. The New York Times editors noted that the latest ruling "is a victory for the rights of detainees - and a rebuke to the lawless policies of the Bush administration". (June 25, 2008)
Nevertheless, the Bush administration shows no sign of fundamentally abandoning its discredited Guantanamo policies. Bush asked Congress for a plan to allow the Guantanamo prisoners to challenge the basis of their incarceration in federal courts but without ever setting foot in the United States because of the "extraordinary risk" they allegedly pose.
Bush also asked Congress to reaffirm in the same plan that the United States "remains engaged in an armed conflict with Al Qaida". A similar affirmation following 9/11 was used by the Bush administration to justify its violations of the human and constitutional rights of detainees in American camps abroad and its war on civil liberties at home.
In the belligerent mindset of the Bush administration the so-called war on terror justified the horrors of Abu Ghraib, the extraordinary renditions, the CIA secret prisons, the countless violations of international law, and the cruelty of Guantanamo.
'Worst of the worst'
The Bush administration called the Guantanamo detainees "the worst of the worst". A report on Guantanamo detainees prepared by Seton Hall University School of Law concluded that 55 per cent of the detainees had not been determined to have committed any hostile acts against the United States. Only 8 per cent of the detainees are alleged to be Al Qaida fighters.
The report also found that 60 per cent of the Guantanamo suspects had been detained simply because they were "associated with" groups the Bush administration considered terrorist organisations.
Moreover, an eight-month McClatchy newspapers investigation in 11 countries on three continents, published last month, established that dozens of men, perhaps hundreds, had wrongfully been imprisoned in Afghanistan, Guantanamo and elsewhere by US forces on the basis of flimsy or fabricated evidence, or bounty payments.
McClatchy newspapers reporters interviewed 66 released detainees, more than a dozen Afghan officials - and US officials with intimate knowledge of the detention programme. The investigation also reviewed thousands of pages of US military tribunal documents.
"The investigation also found," a report of the investigation stated, "that despite the uncertainty about whom they were holding, US soldiers beat and abused many prisoners".
One of these detainees is 21-year old Egyptian Canadian Omar Khadr who was arrested by American forces when he was 15 years old. Khadr was injured and arrested during an American raid on a compound in Afghanistan and accused of throwing a grenade that killed an American medical officer.
Khadr complained to Canadian intelligence agents who visited him in 2003 that he had been tortured in Afghanistan by American personnel before being sent to Guantanamo where he suffered abuse and cruelty.
Successive Canadian governments ignored his pleas for help and repatriation to Canada. Former Canadian Prime Minister Paul Martin now says that if his government knew what is now known he would have repatriated Khadr to Canada. Current Prime Minister Stephen Harper refuses to intervene.
Earlier this month the Supreme Court of Canada ordered the government to release secret documents about the Khadr case. The documents indicate that Khadr had been abused by his interrogators and that he suffered sleep deprivation.
Khadr was classified as an enemy combatant. The UN considers any person under the age of 18 who is part of regular or irregular armed forces as a child soldier-generally viewed by the international community as a victim in need of rehabilitation.
Enough suffering
In a court brief to the military commission set to try Khadr in October, Professor Sarah Paoletti of the University of Pennsylvania School of Law stated: "To date, there is no precedent in history for the prosecution of a child soldier before an international criminal tribunal."
At the Special Court for Sierra Leone in 2004, the US prosecutor, David Crane, was given the option of putting on trial those aged 15 to 17 who committed war crimes. Crane famously rejected the idea. "The children of Sierra Leone have suffered enough both as victims and perpetrators," he said, "I want to prosecute the people who forced thousands of children to commit unspeakable crimes."
Khadr's human and constitutional rights have been violated, in particular his right not to be prosecuted for ex post facto crimes-offences that were not crimes at the time they were committed. The charges against Khadr include conspiracy to aid Al Qaida, and murder by an "unprivileged belligerent".
But these charges were not offences in 2002 when Khadr was arrested. They became offences only in 2006 when Congress passed the Military Commission Act. A defendant cannot be tried on the basis of retroactive application of the law. Khadr could not be expected to comply with a law that had not yet existed.
Regrettably, the kangaroo courts of Guantanamo are nonetheless going ahead with the trial of Omar Khadr, a child soldier and a prisoner of war, abandoned by his government and denied due process by his captors. One of the many stories of cruelty of the Guantanamo prison.
Professor Adel Safty is Distinguished Visiting Professor at the Siberian Academy of Public Administration, Novosibirsk, Russia. His latest book, Leadership and Democracy, is published in New York.
