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Prisoner of war or illegal enemy combatant? : an analysis of the legal status and rights of the Guantánamo detainees



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The objective of this thesis is to explore and analyze some of the major difficulties, challenges, and debates involved with the issue over which status and rights to afford to those detained in the War on Terrorism, in particular the Guantánamo detainees. Unlike conflicts of the past, the War on Terrorism is being waged against very unconventional enemies. Because of this, the Bush Administration, foreign governments, human rights groups, and both governmental and non-governmental organizations are currently engaged in a critical debate over which legal status and rights should be afforded to these enemies upon their detention. If any agreement is to be made regarding the legal status of the Guantánamo detainees, it is important to obtain a basic understanding of the issue itself as well as both sides of the debate. In order to do this, three core issues are explored. Firstly, what are President Bush’s strategic reasons for refusing to grant the Guantánamo detainees prisoner of war (POW) status and what are the steps that the Administration has taken to ensure that its strategies in approaching the War on Terror are protected? Secondly, what are the counter arguments to the Bush Administration’s position, who is voicing these arguments, and why? Finally, what impact does the Administration’s position have on how and to what extent the War on Terror is waged? Once these questions have been explored, the thesis concludes that the Bush Administration’s approach to the War on Terror has proven to be reckless. The security threat posed by terrorism should not obscure the importance of human rights. An anti-terrorism policy that ignores human rights is a gift to terrorists. It reaffirms the violent instrumentation that breeds terrorism as it undermines the public support needed to defeat it. A strong human rights policy that respects the detainee’s right to due process and to not be subjected to torture, cannot replace the actions of security forces, but is an essential complement. A successful anti-terrorism policy must endeavor to build strong international norms and institutions based on human rights, not provide a new rationale for avoiding and undermining them. If the Bush Administration remains on its present path, the rights of the Guantánamo detainees will continue to be violated and, as a result, threaten the rights of others who depend on the fair application of the law.



Illegal Enemy Combatant, Prisoner of War, Military Commissions Act, Guantánamo Bay, War on Terrorism



Master of Arts (M.A.)


Political Studies


Political Studies


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