"The white man says, there is freedom and justice for all. We have had "freedom and justice," and that is why we have been almost exterminated. We shall not forget this." - 1927 Grand Council of American Indians
With the promise of newly inaugurated president Obama to close Guantanamo Bay comes many questions relevant to both the recent past and future of social justice in America. This promise comes at a price, and well too late for many who are completely innocent, or for enabling basic due process for those who should have been able to receive fair trials rather than unending and unchallengeable detention. But denying even basic due process, whether through tainted or entirely manufactured evidence, abusive interrogation, or by false witnesses, has a long history in the United States, as one can learn from America's longest surviving political prisoner, Leonard Peltier.
An important case worth considering is that of Saudi detainee Mohammad al-Qahtani. Claimed as the 20th intended hijacker for the 9/11 attacks, he was picked up in Afghanistan in 2002, and tortured so heavily by the U.S. at Guantanamo Bay that even the military's own appointed judge, Susan Crawford, refused to further facilitate what would clearly have to be an entirely sham trial. Ms. Crawford asks an important question, "If we tolerate this and allow it, then how can we object when our servicemen and women, or others in foreign service, are captured and subjected to the same techniques?" How indeed Ms. Crawford, can we assure fair and equal justice for anyone in the United States, here and abroad, when the United States government itself so openly mocks the very meaning of the word by both past and present actions?
More relevant still is the case of Mohammed el Gharani, picked up at the age of 14, kidnapped while studying in school in Pakistan in 2001. The military had accused Mohammed el Gharani, a citizen of Chad who had lived in Saudi Arabia, of being part of Al Qaeda. However, U.S. District Judge Richard Leon said those accusations were based on testimony from other Guantanamo Bay detainees, which he found unreliable. The government claimed he had been in Afghanistan, for which no demonstrable evidence whatsoever, and plenty of clear and convincing evidence to the contrary did. Yet, it took six years for Gharani to finally be released, as we was held in limbo and tortured in Guantanamo. How does this cruel and abusive government propose to return his childhood?
With many facing false and fabricated evidence, and others held based on tainted testimony, the government now has found it cannot even prosecute those who just might actually be found guilty of crimes. However, this problem is not the making of those incarcerated at Guantanamo. They are the direct consequence of decisions, made illegally, by the highest civil authorities in the United States government, the President and Vice President, and carried out by their subordinates. This problem of what to do with Guantanamo and those imprisoned there ultimately touches upon what to do about Justice in America as a whole.
Of course, it did not have to be this way. The United States could have chosen to comply fully with it's constitutional and Geneva Convention obligations, and even then still prosecute, legally, with internationally accepted standards of due process, those it chose to detain, rather than to completely undermine the most basic modern international agreements on human rights. The challenges posed for doing so, even by the standards mandated by the Geneva Conventions, are in reality rather minimal.
What is often missed in the false assertions of the Bush administration's apologists trying to somehow justify illegal detentions as somehow necessary for a "new" class of criminal is that the Geneva Convention actually allows nations to classify and then detain people as "enemy combatants" already. All that is required is that they are received initially as prisoners of war, and accorded a classification hearing that required a rather disappointing limited standards of due process to be met. Once so classified, even the Guantanamo detention program, and internationally acceptable trials, could have been carried out, in full accordance with existing international law and the treaty obligations of the United States government imposed through the Geneva conventions. Even these rather minimal standards, however, were in conflict with the objectives of the United States government.
Instead, the executive authority of the United States government choose, indeed, welcomed, the opportunity to deliberately repudiate even this minimal standard for due process, to establish direct executive rule, with what can only be concluded was to enable a police state climate where unlimited detention without oversight could be used against anyone the executive branch deemed fit to so persecute, whether they are a citizen of the United States or not. These acts are not minor indiscretions of an over-sexed mental adolescent, they are true high crimes and treason, as defined by the United States constitution itself, and in addition are prosecutable as international war crimes.
Simply closing Guantanamo only puts a band-aide on a bleeding artery. The only way for justice to move forward in the United States is through an effective repudiation of past injustices by bringing those responsible for such actions to face full justice today. This is true whether we consider the case of falsely imprisoned political activists from the past such as Leonard Peltier, or the question of places like Guantanamo. The alternative to equal justice and due process is reservation justice for all in America.