Guantanamo: Our Collective Shame

As citizens we all bear a degree of collective responsibility for what our government does in our name. That responsibility is greater when we are or should be on notice. And thus, we are all responsible for what is happening in Guantanamo detention camps.

We are collectively responsible for what is happening in Camp Delta and Camp Iguana (the latter holds children). It is, or it should be, a matter of shame that our government chose to confine the Camp Delta prisoners in solitary, indefinitely, without news or the prospect of having their cases determined in the foreseeable future and where the policy is “We interrogate seven days a week, 24 hours a day.” (Interrogations, however, are limited [sic] “to no more than 16 straight hours” straight at one go.) There is no right to speedy trial (or other Geneva-convention-style hearing), or even to a trial. If and when trials do begin, there will be no right to to a proper attorney-client relationship even though the trials can end in the death penalty. Nor will there be a right to appeal the initial tribunal's verdict to a neutral court staffed by judges with the neutrality of perspective that comes from life tenure.

As of a year ago, the BBC was reporting at least 30 suicide attempts out of a prison population of 600. While it's possible that there is something about the population of detainees that predisposes them to suicide attempts, it's also quite possible that it's something about the conditions and, if so, conditions that bad arguably amount to illegal torture under international law. On the other hand, the rate of suicide attempts may be down as a recent CBS report put the total at 32.

This rich nation of ours can afford to give each detainee a first class fair trial, if it wanted to. In so doing it would send a healthy message about our values to the world. The decision not do so is a choice. By making that choice the Administration is sending a terrible message to the world. It's also a really lousy precedent.

I also believe that it's constitutionally wrong. Our government is, or should be, an entity subject to the Constitution. I do not read that document to allow our government to act lawlessly and without review. And certainly not indefinitely.

By holding the detainees abroad on formally Cuban [is that our model for legality?] territory, the government has persuaded our courts that its actions there are not subject to ordinary judicial review as our courts believe they lack jurisdiction to intervene. See Al Odah v. U.S., 321 F.3d 1134 (dismissing habeus petition and Alien Tort Claims act claim for lack of jurisdiction); Coalition of Clergy, Lawyers & Professors v. Bush, 310 F.3d 1153 (dismissing habeus petition for lack of jurisdiction). While those court decisions were supported by some precedent, notably Johnson v. Eisentrager, 339 U.S. 763 , I think these courts are fundamentally mistaken. Others, including most recently six former federal judges, agree.

All authority exercised by a government official arises from the Constitution. That document doesn't give officials the right to act arbitrarily. Their authority is always subject to the Bill of Rights, including the due process clause.

Due process is, however, a sliding scale, which varies with the circumstances. It would be absurd to suggest that due process rights apply to armed combat. (Although the laws of war do apply.) Enemy soldiers don't have a right to a hearing before our soldiers shoot back at them.

But it is in no way absurd to suggest that due process has something to say to military prisoners being held far from the field of battle. Indeed, the Supreme Court essentially agreed with this claim in Application of Yamashita, when it heard a petition from a Japanese general who was been tried by a U.S. military tribunal in the Philippines, a situation analogous to Guantanamo—except that hostilities were conceded to be over. (The Guantanamo detainees captured in Afghanistan may never enjoy that advantage, if only because the current hostilities—the so-called 'war on terrorism'—has no likely end.) Suppose, to take an extreme hypothetical, prisoners were being tortured with a rack and thumbscrews. Could it be that the constitution authorizes this? Or—which to me (but, oddly, not to all constitutional theorists) is the same thing—that its silences fail to provide a mechanism to stop it?

It might be that after a proper review, a court would find the conditions in Camp Delta to be consistent with Due Process, and reject claims that detainees are being subjected to cruel and unusual punishment. I don't have the facts to know how that would come out, although I have uncomfortable suspicions.

Whatever the outcome of that review, I would like my government to be willing to undergo that examination, and to pledge to live with the results.

I'm confident, furthermore, that a reviewing court persuaded of its jurisdiction would demand that procedurally sound hearings be held posthaste to determine each detainee's proper status.

A government sure of itself, and confident of the rightness of its actions, would not hide the detainees in legal limbo. To do so suggests a meanness of spirit at best, a tendency to lawlessness and something to hide at worst, and a tin ear to the world's opinion at all times.

We in the US—indeed all those in the Coalition of the willing —are responsible for this. If the courts will not take jurisdiction over events at Guantanamo, then we must demand that all the prisoners held there be moved to a place where ordinary civilized rules apply.