Guantanamo Bay: Detainees or Enemy

Guantanamo Bay: Detainees or Enemy Combatants Guantanamo Bay, Cuba, where the United States maintains a Navy base, is also the place that has, for the past seven years, since September 11, 2001, been the subject of controversy and debate. At the center of the debate and controversy are some 640 nationals from countries other than the United States (Fogarty, Gerard, P., 2005, p. 54).

These individuals have been detained by the United States as threats the United States, alleged to have conspired or acted independently or with others to bring about harm to the citizens and government of the United States (Fogarty, p. 54). The controversy, however, extends beyond the detention of the individuals, although the detention is in and of itself a primary issue; still other issues branch off in peripheral legal and human rights issues and directions.

To understand the detention, the legal and human rights issues of surrounding the individuals who have become known as "the Guantanamo Bay detainees," it is necessary to first break the issues down, and then to present the arguments of each side.

The various arguments, sides, if you will, can be put into two categories represented by the prisoners themselves by asking the question: Are the Guantanamo Bay foreign-nationals held at Guantanamo Bay detainees or enemy combatant? It is by way of these two definitions that the foreign nationals being held at Guantanamo Bay have been described at any given time, and by which the arguments can ostensibly be categorized, and subsequently discussed in a coherent way.

Foreign National Backgrounds Before examining the three core issues of detainees, prisoners, or hostages, it would be useful to have some insight as to who the foreign nationals being held at Guantanamo are, and where their country of origin, and how these individuals came to be at Guantanamo Bay. Following the events of September 11, 2001, when religious fundamentalists attacked the United States, using commercial airline passenger jets as weapons of mass destruction. These events are well documented, and most Americans are familiar with them in detail.

What most Americans are not familiar with, are the steps the United States began taking in pursuit of its War on Terrorism. Following the United States' invasion of Afghanistan, in February, 2002, the Washington Times reported that 186 detainees had been moved out of Afghanistan, to Guantanamo Bay, Cuba (the Washington Times, 2002, p. A01). It was reported in the same article that another 271 prisoners were in Afghanistan, awaiting transport to Guantanamo (the Washington Times, p. A01).

The article cited the Pentagon as its source for identifying 50 of the Guantanamo detainees as being Saudi Arabian nations; 30 Yemenis; about 25 Pakistanis; eight Algerians; three British citizens, and "small numbers from Egypt, Australia, France, Russia, Belgium, Sweden, and other countries...(the Washington Times, p.

A01)." The article does not go on to describe whether or not the citizens of the European nations are Muslim, of Arab heritage, but does report that the prisoners had information about Al Qaeda and planned attacks, and that they were being interrogated (the Washington Times, p. A01). Detainees Detainee" is the term that has consistently and casually used to describe the foreign nationals being held in Guantanamo Bay, Cuba. The term refers to the obscurity of the legal status of the detainees.

It has come to define foreign nationals being held in American military facilities without benefit of being charged with a crime, without access to legal representation, and without access to due process under American laws (Katyal, Neal, 2007, p. 1365).

Petitioners' allegations -- that, although they have engaged neither in combat nor in acts of terrorism against the United States, they have been held in executive detention for more than two years in territory subject to the long-term, exclusive jurisdiction and control of the United States, without access to counsel and without being charged with any wrongdoing -- unquestionably describe "custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. [section] 2241-(3). Cf. United States v. Verdugo-Urquidez, 494 U.S.

259, 277-78 (1990) (Kennedy, J., concurring), and cases cited therein (Katyal, p. 1365)." The Bush Administration says that the detainees pose a threat to the United States, and the detainees are complicit either in the September 11, 2001 attack against the United States; or that they took part in separate but no less equally threatening plots to commit acts of terrorism and make war on the United States. Early in 2002 when the detainees were being transported to Guantanamo Bay, the Bush Administration did not suffer a lot of negative feedback.

As time passed, however, and when it became apparent that the status of the detainees could remain undefined indefinitely, criticism began being fired at the administration. Enemy Combatants The term "enemy combatant," evolved and took on a definition when one of the detainees being held at Guantanamo Bay was identified as being an American citizen (Anderson, James B., 2005, p. 689). The American, Yaser Esman Hamdi, is an American citizen by birth, and was captured by the Northern Alliance in Afghanistan, in 2001 (Anderson, p. 689).

In 2002, Hamdi's father filed a petition for writ of habeas corpus on behalf of his son, seeking to avail his son of his Constitutional rights (Anderson, p. 689). By the time the writ of habeas corpus had been filed, Yaser Hamdi had been moved from Guantanamo Bay, to Norfolk, Virginia, and finally to a Navy installation in Charleston, South Carolina (Anderson, p. 689). The petition alleged that Hamdi had been held, imprisoned, without being formally charged of a crime, and without access to legal representation or due process (Anderson, p. 689).

The District court ordered that Hamdi be assigned counsel, which counsel would have unlimited access to the prisoner (Anderson, p. 689). The Government appealed the order, and the Fourth Circuit reversed the District Court ruling for counsel (Anderson, p. 689). However, the Government made a "declaration," which has subsequently become known as the "Mobbs Declaration," for the Special Advisor to the Under Secretary of.