To those of us on the right who still vigorously support the President in the War on Terror, the Hamdan ruling presents us with a golden opportunity to start repairing the damage our detainee policy at Guantanamo has inflicted upon our Constitutional principles as well as our image abroad.
To those on the left who, despite the unambiguous ruling by the Supreme Court in Hamdan that we are indeed in a shooting war with al-Qaeda, but still insist that the War on Terror is some kind of gigantic Rovian plot to win elections, the decision is a godsend. It gives liberals a second chance to prove they are serious about protecting America from her enemies by joining with the President and Republicans in Congress in resolving the legal status of detainees in such a way that satisfies both the demands of justice and our national security.
Camp Delta has become an iconic symbol worldwide of American hypocrisy in the War on Terror. The name "Guantanamo" will go down in history with other notorious prisons such as the French nightmare penitentiary on Devil's Island and the North Vietnamese disreputable POW camp known as "The Hanoi Hilton."
Regardless of whether or not Guantanamo matched those two facilities in sheer brutality and horror, the fact remains that the narrative supplied by western media to describe Guantanamo to the rest of the world has made it so. And in propaganda, perception is everything. There are no starving skeletons or daily beatings as there were at Devil's Island and the Hanoi Hilton. But the brutality that has been confirmed by independent observers, including our own military and the FBI, is real enough and has brought shame to the United States and damaged our reputation as a champion of justice and human rights among friend and foe alike.
These are simply the facts. It does no good to argue that what goes on at Guantanamo doesn't rise to the level of torture. Not anymore. One of the main findings in Hamdan was that the detainees at Guantanamo – no matter how bloodthirsty and heinous their crimes – are entitled to the protections of the Geneva Convention. This includes being protected against "[o]utrages upon personal dignity, in particular, humiliating and degrading treatment." This means many of the relatively mild "stress techniques" of interrogation well-documented elsewhere were, and are, illegal.
And that's only the half of it. The Hamdan decision also knocked the chocks from underneath the government's position that it could try Guantanamo detainees using the rubric of military tribunals. While sympathetic to the reasons given by the government for using the tribunals – namely that trying terrorists in open court could endanger the innocent – the Supremes nevertheless firmly ruled that such tribunals violated the Geneva Convention and hence, U.S. law.
The bottom line is that the Supreme Court ruled that the United States government acted illegally and unconstitutionally in the way it has treated detainees at Guantanamo. So the question is no longer one of right or wrong but rather what to do about the mess we have made in Guantanamo.
This mess includes the fact our government lied to us when they informed the American people that the prisoners at Guantanamo were "the worst of the worst." The facts contained in the military's own records simply do not bear that out. And it is clear, at least to this observer, one of the main reasons the government insists on holding many of these detainees is not the fear that, if released, they would commit heinous acts of terror but rather because by releasing them now it would prove that the military made many, many tragic mistakes in capturing, interrogating, and holding dozens of innocent men and boys.
An exhaustive examination of the military's "Combatant Status Review Tribunals" by two National Journal reporters last February revealed this shocking conclusion:
Many of them are not accused of hostilities against the United States or its allies. Most, when captured, were innocent of any terrorist activity, were Taliban foot soldiers at worst, and were often far less than that. And some, perhaps many, are guilty only of being foreigners in Afghanistan or Pakistan at the wrong time. And much of the evidence — even the classified evidence — gathered by the Defense Department against these men is flimsy, second-, third-, fourth- or 12th-hand. It's based largely on admissions by the detainees themselves or on coerced, or worse, interrogations of their fellow inmates, some of whom have been proved to be liars.
Perhaps most shocking of all is that despite repeated assurances from Administration officials that the Guantanamo detainees were captured "on the battlefield" in Afghanistan, the facts contained in the military's own records do not support that contention. In fact, it appears that many of the detainees were captured in Pakistan and were handed over to the Americans by:
"…reward-seeking Pakistanis and Afghan warlords and by villagers of highly doubtful reliability. These locals had strong incentives to tar as terrorists any and all Arabs they could get their hands on…including noncombatant teachers and humanitarian workers. And the Bush administration has apparently made very little effort to corroborate the plausible claims of innocence detailed by many of the men who were handed over…"
How little effort has been made to establish claims of innocence? The Guardian features a story today about one Abdullah Mujahid who the government claims was plotting against the United States. Two years ago, the military invited Mr. Mujahid to prove his innocence by calling witnesses in his defense before a tribunal.
A few months later, the government informed Mujahid that the witnesses could not be found which meant that his incarceration would continue indefinitely. The newspaper however, found three of the witnesses within three days. One was working for President Karzai, advising him on tribal affairs. Another teaches at the National Defense University in Washington, D.C.
The Guantanamo records are replete with examples of such incompetence or deliberate malfeasance, depending on your point of view. And herein lies the root of the quagmire at Guantanamo; our inability to admit we were wrong about some of these people and work to redress the injustice.
Clearly, there are many detainees at Guantanamo who should never see the outside of prison bars again. And now that the Supreme Court has offered guidance on what to do with these terrorists – specifically asking the President to go to Congress to get the legal authority to try them – those of us who are interested in both justice and our nation's security should wholeheartedly support this effort.
But what can we do to determine the status of hundreds of others whose incarceration is a blot on American jurisprudence and shames our Constitution and our most cherished values? Clearly there must be procedures using our civilian courts to weed out the innocent from the dangerous. And Congress can also intervene here by developing guidelines in concert with the Justice Department and the Department of Defense to insure that justice is done and our national security is protected.
One of the major stumbling blocks is the fact that much of the evidence gathered against detainees is of a classified nature. And evidence gathered as a result of interrogation of other prisoners, if released in open court, could endanger the person who supplied that information. For this reason, detainees cannot enjoy all the rights afforded American citizens in similar circumstances. But they should have the right to an attorney, the right to a speedy review of their case, the right to an examination of the evidence by an impartial judge, and perhaps a limited right to face their accuser if possible.
At the very least, the above gives us a basis for action. Congress has been dithering about this issue for more than three years, passing the buck to the Department of Justice and the Defense Department. Now that the Supreme Court has cleared up some of the issues surrounding detainees at Guantanamo, Congress could indeed clear up most of the others by dealing with detainee rights in a forthright manner that could begin to repair some of the damage done to our reputation as a champion of human rights and the rule of law.
We will be at war with international jihadism for many years. Besides winning on the battlefield, it is absolutely essential that we also win the hearts and minds of the hundreds of millions of Muslims who reject the violence and nihilism of the extremists and really do wish to rid themselves of the terrorists. This won't happen as long as some of our policies reveal us to be hypocrites and worse, little better than the governments that oppress them on a daily basis.
We simply must stand for something better, something that we can be proud of. But as long as our detainee policy continues to show us at our worst, it will be impossible for many to see us at our best.