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THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON June 26, 2002

Do foreign terrorists deserve legal rights?


The latest in the series of terrorist warnings since Sept. 11 has to do with the use of fuel tankers for a possible attack on synagogues or Jewish schools. The warnings all have one common link. They result from interrogations of captured al-Qaida and Taliban fighters held at the American military base at Guantenamo Bay, Cuba.

Each time a terror warning is issued we are reminded of the thorny question that continues to divide us. How much personal freedom should a democratic nation give up in the name of fighting terrorism? When applied to foreign terrorists, even legal scholars can't agree on whether they deserve the same rights as U.S. citizens.

As the result of an executive ordered signed by President Bush, close to 600 prisoners from 25 countries are presently being detained without formal charges, access to lawyers, or with any opportunity for independent judicial review. Months have elapsed since the maximum-security prison was constructed on the military base and still no decision has been reached on who, if anyone will face military tribunals for prosecution. As to why they are sequestrated in Cuba and not in the United States, there are only two possible reasons: better security conditions because of the base's isolation and more flexibility for the CIA and F.B.I interrogation team which is made up of specialists in extracting information from reluctant subjects.

Intelligence failures

As long as there remains a threat of more terrorists' attacks on U.S. soil, they will continue to be interrogated. However, with so many prisoners barred from any contact with the outside world, who knows for sure what interrogation techniques are being employed. Despite claims by Defense Secretary Rumsfeld that no detainee has been harmed or mistreated, critics remain skeptic. Considering how the Central Intelligence Agency and the Federal Bureau of Investigation are being blamed for what critics see as intelligence failures regarding the Sept. 11 attack, the temptation to extract information at any cost must be extremely high.

Before coming down on either side of the issue as to whether the captured prisoners deserve the same rights as US citizens, there are persuasive arguments, both for and against.

Supporters of the Bush policy view the Guantenamo detention operation as a direct extension of the president's power as commander in chief to wage war and not as an attempt to eradicate a function of the judicial branch.

Government officials claim that the US has a responsibility to ensure that members of the most dangerous terrorist organization in the world, once captured, are not allowed to engage in future terrorist attacks. Such a claim is difficult to challenge seeing that it only takes a small group of dangerous fanatics who are prepared to die in order to slaughter thousands of innocent lives. Even a single terrorist wielding a small nuclear device could conceivably wipe out an entire city. As for the need to interrogate captured terrorists there can be little doubt that it is an essential tool in obtaining information on future attacks.

Support tough stand

Considering the growing number of terror alerts including threats of bioterrorist assaults since Sept. 11, it is little wonder why so many anxious Americans support their president's tough handling of the prisoners.

The opposing viewpoint, although less vocal and not quite as popular, is also worthy of consideration. Many of Bush's critics are not at all comfortable with a president being able to imprison people indefinitely simply at his own discretion and without having to present any proof before a judge. Just the idea that captured terrorists can be thrown into jail indefinitely without an independent judicial determination violates their fundamental precept of American justice. Some legal analysts are beginning to wonder how their country which claims to believe in the essential importance of human rights can deny those rights to those who would deny them to others. Others see similarities between the way terrorists are being treated in Guantenama Bay and what goes on in the world's most brutal dictatorships. Then there are those who have a hard time believing that the Taliban or Al Qaeda prisoners are any worse than a Timothy McVeigh, Jeffery Dahmer or a Ted Bundy who, as American citizens, were all afforded their rights.

Violates convention

At least three U.S. human rights organizations view the detention in Cuba in violation of the I949 Geneva Convention. They contend that the terrorists should be granted prisoner of war status which would prevent American security forces from interrogating them and require that they be released when the hostilities in Afghanistan are over. POWs are only obliged to give their name, rank, and serial number.

However, the response by the Bush administration is equally sound. His supporters argue that the prisoners have no business being compared to soldiers fighting in battlefields under the authority of governments. They are also convinced that their methods of terror against innocent civilians violate internationally accepted laws and therefore fully justify their status as "unlawful combatants".

Notwithstanding the fact that our own soldiers participated in capturing the al-Qaida and Taliban fighters no doubt many of us would express shock and outrage were they held prisoners on Canadian soil under similar circumstances. In the area of civil liberties, our own legal scholars would point out that our Charter of Rights and Freedoms guarantees certain basic rights to all "persons", irrespectively of citizen status. They could easily make a strong case against any effort to suspend their civil liberties.

While it is true that our Charter of Rights and Freedoms recognizes the distinction between citizens and non-citizens in areas such as immigration law, attacking a Charter right or freedom is no simple matter on this side of the border. Every executive order or legislation aimed at limiting a Charter right is guaranteed to be declared unconstitutional unless the government sponsoring it can prove that it constitutes a reasonable limitation in a " free and democratic society".

Canadians not so pure

However, just in case some of us are tempted to respond with indignant righteousness because of how the prisoners in Guantenamo Bay Naval Base are being treated, we may want to hold our feelings in check. After all, we wouldn't want to be reminded how the Canadian government denied every right and freedom of the Japanese community living in BC during the Second World War. Over 22,000 Japanese Canadians were uprooted, dispossessed of their homes and businesses, evacuated and incarcerated in POW camps along with their children.

Thirty years later, the Trudeau cabinet invoked the War Measures Act and in doing so used its extraordinary powers to jail 453 people without trial. Only 20 were convicted on any charge.

The next time you decide to cancel your trip to the United States because of a terror alert based on information obtained during the disputed interrogations you might want to ask yourself another question. If the prisoners held on the U.S military base deserve certain legal rights should they include the right to refuse to answer the questions of their interrogators even when national security is at stake?