Tuesday, April 25, 2006

Justice delayed, justice denied

The Pentagon has announced plans to summarily release 141 detainees at Guantanamo, roughly a third of the 490 remaining prisoners, and to charge an additional two dozen or so.

Charges are pending against about two dozen of the remaining prisoners, the chief prosecutor said. But he left unclear why the rest face neither imminent freedom nor a day in court after as many as four years in custody.

Only 10 of the roughly 490 alleged "enemy combatants" currently detained at the facility have been charged; none has been charged with a capital offense.

That leaves the majority of the U.S. government's prisoners from the war on terrorism in limbo and its war crimes tribunal exposed to allegations by international human rights advocates that it is illegitimate and abusive.

So let's review the math. After four years of holding prisoners without charge, and without affording them the protections of either our legal system or the Geneva Convention, we have:

390 prisoners released without charge;
34 or so charged with various crimes;
300 or so continuing to be held without charge or any effective way to challenge their imprisonment.

Then there are the prisoners, such as the pair of Chinese Muslims I wrote about earlier, that the U.S. acknowledges are innocent but continues to imprison because they face persecution if sent home.

So we hold 750 people for years so that we can eventually charge fewer than 40. That works out to a false-imprisonment rate of about 95 percent.

I understand holding soldiers until the end of hostilities. But then you identify them as POWs, give them Geneva Convention rights and carefully detail which conflict you're holding them as part of, and how that conflict will be defined as "ended". If we hold everybody we sweep up in the "war on terror" until the end of the "war on terror", we're going to be holding low-level combatants for decades.

I understand imprisoning terrorists for a long, long time. But in that case we have to prove they are terrorists. Which requires charges, evidence and a civilian trial.

I understand the difficulty of trying people when much of the evidence against them is classified. But that's why you set up special civilian courts where everyone -- judge, prosecutors, defense counsel -- have security clearances. You don't use that as an excuse to set up military tribunals or simply hold people without charging them.

The Pentagon stresses how carefully every case is reviewed:

He contended that the men's detention had been justified. Battlefield commanders in Afghanistan and Pakistan had determined when the men were arrested that they were a threat to U.S. forces in the region, he said.

"Every detainee who came to the Combatant Status Review Tribunals went though multiple reviews" before their arrival at Guantanamo, Peppler said.

But such reviews rely entirely on the sense of fairness and attitude of the reviewer. That's not how a functional justice system works. Our justice system stresses individual rights precisely because governments do not have a good track record of protecting such rights when left to their own devices. A Pentagon reviewer will err heavily on the side of continued detention, every time, simply because it's the safe choice and because the reviewer is less interested in being fair to the prisoner than he is in not releasing a potential terrorist. The safest way to do that is to never release anybody.

Terrorists deserve to be treated harshly, be it execution or long prison terms. But suspected terrorists deserve rights. By ignoring and willfully attempting to blur that distinction, the Gitmo limbo zone has been a legal and moral disaster since its creation. And the latest prisoner release, while undoubtedly a relief to the prisoners involved, is simply another example of why we should not tolerate its continued existence.

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Anonymous Marc Schneider said...

Great comment. It seems that the US seems to equate terrorists with those that fight against US forces. That seems incorrect to me. Whatever you think of the cause, it's not terrorism to fight against soldiers; it's war. So they should be POWs.

Now, having said that, it's clear to me that the government has a real problem. Having held these people for so long, releasing them (assuming they don't have evidence to try them) is almost certainly dangerous--if they weren't terrorists before, they will be now.

Of course, at least some of the people held are innocent--which doesn't seem to concern the administration.

4/25/2006 9:39 AM  
Blogger Sean Aqui said...

And let me add, what speaks louder in the "war of ideas" between secular democracy and Islamic medievalism: lofty words, or our actual actions? It seems that, through Gitmo, we're doing our best to lose the "war of ideas".

That's why we need to give detainees rights and treat them fairly. Not because we want to coddle terrorists, but because how we treat the detainees reflects upon our culture and political system. We give them rights for our sake, not theirs.

4/25/2006 10:15 AM  
Anonymous Marc Schneider said...

That's a really good point and it's a point that Americans generally miss. It's like foreign aid--people look at it as a hand out when, in fact, we don't give it out of atruism, but out of self-interest. It's the same with rights of the accused--which, of course, have never been real popular with the public.

I have been criticized on other blogs for calling this Administration Orwellian, but it seems to have a very Orwellian idea that, by saying something strongly enough, it becomes true. So, if they say we are promoting democracy, then we are promoting democracy even if our actions are undemocratic. It's as if the rest of the world is supposed to accept our rhetoric because we are the United States and ignore our actions. So, if Bush says we don't torture people (through a narrow definition of torture) that makes it so. I have never seen an administration that is so ill-tuned to the rest of the world.

4/25/2006 2:59 PM  

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