Argument: Guantanamo is inconsistent with American principles of justice

Issue Report: Guantanamo Bay Detention Center


“The President’s Prison”. New York Times. March 25, 2007 – the Bush administration says no prisoner should be allowed to take torture claims to court, including the innocents who were tortured and released. The administration’s argument is that how prisoners are treated is a state secret and cannot be discussed openly. If that sounds nonsensical, it is. It’s also not the real reason behind the administration’s denying these prisoners the most basic rights of due process.

The Bush administration has so badly subverted American norms of justice in handling these cases that they would not stand up to scrutiny in a real court of law. It is a clear case of justice denied.

“The price of our good name”. New York Times (Editorial). November 23, 2008 – Americans have watched in horror as President Bush has trampled on the Bill of Rights and the balance of power. The list of abuses that President-elect Barack Obama must address is long: once again require the government to get warrants to eavesdrop on Americans; undo scores of executive orders and bill-signing statements that have undermined the powers of Congress; strip out the unnecessary invasions of privacy embedded in the Patriot Act; block new F.B.I. investigative guidelines straight out of J. Edgar Hoover’s playbook.

[…]The prison is the premier example of the disdain shown by Mr. Bush and Vice President Dick Cheney for the Constitution, federal law and international treaties. Most sensible governments cannot see past Guantanamo to even recall America’s long history as a defender of human rights and democratic values.

“After the lawyers”. The New York Times (Editorial). April 27, 2007 – It can be hard to tell whom the Bush administration considers more of an enemy at the Guantanamo Bay detention camp: the prisoners or the lawyers.

William Glaberson reported in The Times yesterday that the Justice Department had asked a federal appeals court to remove some of the last shreds of legal representation available to the prisoners.

The government wants the court to allow intelligence and military officers to read the mail sent by lawyers to their clients at Guantanamo Bay. Lawyers would also be limited to three visits with each client, and an inmate would be allowed only a single visit to decide whether to authorize an attorney to handle his case. Interrogators at Guantanamo Bay have a history of masking their identities, so the rule would make it much harder than it already is to gain the trust of a prisoner.

Perhaps the most outrageous of the Justice Department’s proposals would allow government officials — on their own authority — to deny lawyers access to the evidence used to decide whether an inmate is an illegal enemy combatant. Not even the appalling Military Commissions Act of 2006, rammed through in the last days of the Republican-controlled Congress, goes that far.

The filing, with the federal appeals court in Washington, D.C., says lawyers have caused unrest among the prisoners and improperly relayed messages to the news media. The administration offered no evidence for these charges, probably because there is none. This is an assault on the integrity of the lawyers, reminiscent of a former Pentagon official’s suggestion that they are unpatriotic and that American corporations should boycott their firms.

The Justice Department also said lawyers had no right to demand access to clients at Guantanamo Bay because the clients are detained aliens on a secure military base in a foreign country.

Roger Cohen. “A Command of the Law”. New York Times. November 26, 2008 – Of the 770 detainees grabbed here and there and flown to Guantánamo, only 23 have ever been charged with a crime. Of the more than 500 so far released, many traumatized by those “enhanced” techniques, not one has received an apology or compensation for their season in hell.

What they got on release was a single piece of paper from the American government. A U.S. official met one of the dozens of Afghans now released from Guantánamo and was so appalled by this document that he forwarded me a copy.

Dated Oct. 7, 2006, it reads as follows:

“An Administrative Review Board has reviewed the information about you that was talked about at the meeting on 02 December 2005 and the deciding official in the United States has made a decision about what will happen to you. You will be sent to the country of Afghanistan. Your departure will occur as soon as possible.”

That’s it, the one and only record on paper of protracted U.S. incarceration: three sentences for four years of a young Afghan’s life, written in language Orwell would have recognized.

We have “the deciding official,” not an officer, general or judge. We have “the information about you,” not allegations, or accusations, let alone charges. We have “a decision about what will happen to you,” not a judgment, ruling or verdict. This is the lexicon of totalitarianism. It is acutely embarrassing to the United States.

That is why I am thankful above all that the next U.S. commander in chief is a constitutional lawyer. Nothing has been more damaging to the United States than the violation of the legal principles at the heart of the American idea.