Pioneered by the United States and
conducted during every war from Vietnam onwards, competent tribunals
were designed to separate soldiers from civilians, in situations in
which enemy soldiers did not wear uniforms, by holding tribunals close
to the time and place of capture, in which these men could call
witnesses to establish their credentials. In the first Gulf War, these
tribunals led to nearly three-quarters of 1,200 men being released, but
in Afghanistan the administration's decision not to proceed with the
tribunals (which was dictated from the highest levels of government)
not only contributed to the filling of Guantà namo with people who were
neither soldiers nor terrorists, but also led the administration to
conclude that the humane standards of treatment required by the Geneva
Conventions for all prisoners (whether uniformed personnel or not) did not apply to ??enemy combatants. ?
This was just the beginning. Voting
to prevent the Obama administration from bringing Guantà namo prisoners
to the U.S. for any reason ?? even for federal court trials ?? endorses
the notion that, having randomly rounded up hundreds of prisoners, and
having refused to screen them, it was then justifiable to deprive them
of the protections of the Geneva Conventions and to transport them to
Guantà namo, where they continued to be held without rights, and where,
if the lawmakers had their way, they would remain in that perpetual
limbo.
What the nation's lawmakers seem to
be forgetting is that the legal black hole of Guantà namo's early years
was only maintained until June 2004, when no less a body than the U.S.
Supreme Court was required to intervene. The Supreme Court took the
unprecedented step of recognizing habeas corpus rights for the
prisoners. Although some of them may well have been soldiers, who
should have been held as prisoners of war, or terrorists, who should
have been prosecuted as criminals, the Bush administration's decision
to hold them as ??enemy combatants ? without rights meant that those who
claimed that they were innocent men seized by mistake ?? perhaps in
connection with those bounty payments mentioned above ?? had no
effective way of challenging the basis of their detention. Without the
intervention of the Supreme Court, they could have been held for the
rest of their lives without ever having been screened adequately to
determine whether they were, in fact, terrorists, soldiers or innocent
men seized by mistake or sold for money.
Even then, this miserable story was
far from over, as lawmakers should recall. In an attempt to ignore the
impact of the Supreme Court's ruling, the Bush administration
introduced one-sided military tribunals
to evaluate the prisoners' cases, relying on supposed evidence that in
fact consisted largely of ??confessions ? extracted from other prisoners,
either through torture or coercion, or through bribery (the promise of
better living conditions, or the false promise of freedom), and
persuaded Congress (including many of the same cowardly propagandists
responsible for the votes in May, June and last Thursday) to pass two
hideously flawed pieces of legislation ?? the Detainee Treatment Act of
2005 and the Military Commissions Act of 2006 ?? which purported to
strip the prisoners of the habeas rights granted by the Supreme Court.
Last June, the Supreme Court rose up again, this time recognizing the prisoners constitutionally guaranteed habeas corpus rights,
and setting in motion a process of reviews that, to date, has led to
District Court judges examining the government's supposed evidence in
38 cases, and ruling that, in 30 of these cases (in other words, in 79
percent of the cases), the government failed to establish that the men
in question were members of, or supported al-Qaeda and/or the Taliban.
If the lawmakers cared to read the rulings, they would discover that
this was largely because the judges concluded
that the government was relying on supposed evidence that in fact
consisted largely of ??confessions ? extracted from other prisoners,
either through torture or coercion, or through bribery (the promise of
better living conditions, or the false promise of freedom).
Fortunately, the lawmakers are no longer able to prevent these cases from taking place ?? as no doubt, if they were
able, they would yet again cast the remaining prisoners into a lawless
abyss ?? but by making such sweeping generalizations about the
??terrorists ? in Guantà namo, and about preventing the government from
transferring any of these ??terrorists ? to the U.S. mainland to be
imprisoned and to face trials, they are committing a number of grievous
errors.
They are preventing justice from being delivered in the cases of the small number of prisoners
actually accused of involvement in the 9/11 attacks and other acts of
international terrorism, and they are shamelessly, ridiculously, and
unforgivably tarring everyone held at Guantà namo as a ??terrorist, ? even
though the majority of the men have never been charged with any crime,
even though the lack of screening and the bounty payments that I
mentioned above have been assiduously chronicled by lawyers and writers
?? myself included ?? who have not succumbed to a witless parroting of
Dick Cheney's hollow propaganda, and even though judges in U.S. courts continue to demonstrate that, behind the hype and hyperbole, the majority of these men are not ??terrorists ? at all.
My sense of humor will return (you don't deal with Guantà namo day in and day out without having a sense of humor, however dark), but my despair at the spinelessness and stupidity of the majority of the nation's lawmakers will only dissipate when these men and women can be bothered to examine the facts, rather than letting themselves remain infected by the lies and paranoia of the most disgraceful vice president in American history.
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