Ochrona sądowa osób zatrzymanych w Guantanamo oraz obywateli amerykańskich zatrzymanych na terytorium USA - analiza orzecznictwa sądów amerykańskich

Abstract

So far there a few attempts have been undertaken in order to grant the Guantanamo detainees certain constitutional protection and rights resulting from the intemational humanitarian law and intemational human rights law. The plaintiffs had to fight a long battle over their rights which in some cases they won, however at a bitter price of often three years crossed of the life. Those cases pertain on the one hand to the foreigners detained at Guantanamo Bay and on the other to the American citizens considered „enemy combatants” and detained in the territory of the United States. Diverse judgments of the district and appeal courts, different, ever changing, indeed arbitral standards of treatment and ąualification of the detainees by the American administration are the evidence of the hypocrisy of the authorities and of a lack of respect for the law and its arbitral interpretation according to particular needs. Some of the court judgments and their explanations are appalling; the terminology used by the judiciary as well as by the administration are eąually appalling and in short they can be described as terminological mess. New terms are being invented and only after that definitions are added to them (for instance „enemy combatant”), terms which one will in vain look for in the intemational humanitarian law regulations. We deal here with the creation of new unnecessary and confusing terms because those terms which can be found in the Geneva Conventions namely those of combatants, prisoners of war and civilian person are sufficient and precise.

On June 28, 2004 the U.S. Supreme Court (SC) passed judgments in three important cases: Rumsfeld v.s. Padilla, Rasul vs. Bush and Hamdi vs. Rumsfeld. In Rasul vs. Bush the SC held that the U.S courts have jurisdiction to verify the legality of Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing. This decision was probably the most revolutionary of the present SC’s trilogy. Unfortunately it does not mean that the detainees are finally guaranteed some substantial rights but only a procedural right to challenge the legality of their detention. That ąuestion was lefit for the district courts to decide. With no doubt the American courts have a very responsible task to perform but they should not hesitate to ąuestion and control executive’s decisions which may yiolate basie human rights guaranteed in the intemational treaties, intemational customary law and the American Constitution. The need for a balance between the State security and the rights and freedoms of human beings appears expressly in the course of the armed conflict yet after it has ended the State security does not seem to be so much endangered. It should be emphasized that the intemational armed conflict between the United States and Afghanistan has ended and there is no longer any legał ground for holding the detainees in Guantanamo Bay without charging them.