Wolf D. Fuhrig

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Justice At Guantanamo?

When U.S. troops invaded Afghanistan and captured combatants suspected of association with the Al Qaeda conspiracy or the Taliban regime, the Bush administration had every right to imprison, interrogate, try, and, if guilty of a crime, punish them. The 4th, 5th and 6th amendments to our Constitution clearly provide the principles for efficient and fair prosecution of criminal suspects, principles that all democratic countries respect and have come to emulate.

On July 3, 2002, eight months after the invasion of Afghanistan began, Newsweek reported that 564 prisoners of 39 nationalities had been taken to the U.S. base at Guantanamo at the southern coast of Cuba. Although little, if anything, was then known about the captives’ personal history and motives, Defense Secretary Donald Rumsfeld summarily declared: “These are some of the most dangerous, best-trained, vicious killers on the face of the earth.”

For the Bush administration, neither the U.S. Constitution nor the Geneva conventions offered adequate rules to deal with these prisoners. None of them was informed of evidence or charges against him or given access to an attorney. The Department of Defense (DOD) told reporters who took issue with the absence of due process of law that, by presidential decree, these captives were not prisoners of war but “enemy combatants” held on “foreign” soil at the U.S. naval base of Guantanamo where the U.S. Constitution would not apply to them. “The prisoners are not charged,” DOD explained, “because they’re being ‘interrogated,’ not ‘investigated.’”

The procedure in force for the Gitmo (short for Guantanamo) detainees does not distinguish between terrorists committed to mass murder and innocent people falsely imprisoned. Last June, however, the U.S. Supreme Court ruled that even “enemy combatants” are entitled to challenge their detention in court. Government attorneys had argued that persons when categorized as “enemy combatants” under the President’s order have no longer any rights and therefore cannot challenge anything in court.

Now, three years after the alleged “enemy combatants” arrived at Gitmo, not a singly one has been convicted of a crime. The Army and the Justice Department’s Inspector General are investigating FBI claims of abusive interrogation techniques. Some countries, such as Britain and Australia, insisted upon the return of their imprisoned citizens. Other detainees were released, apparently for lack of any connection to Al Qaeda. The fate of 550 still in the prison camp remains in limbo.

In his May 31 press conference, the President called Amnesty International’s reports of prisoner mistreatment at Gitmo “absurd.” Vice President Cheney found them “absolutely irresponsible.”

Yet, reports about degrading treatment and torture in prisons under U.S. control abound in our own and in foreign media. A lawsuit under the Freedom of Information Act by Associated Press forced the Bush administration to release more than 1,000 pages of court transcripts with allegations of abuses and forced confessions at Gitmo. A New York Times account spoke of over 100 detainees having died of unspecified causes in U.S. custody. Should we assume that all these embarrassing allegations are nasty lies by people who hate America?

Last week, in a column from London, Thomas Friedman of the New York Times wrote: “If you want to appreciate how corrosive Guantanamo has become for America’s standing abroad, … read the British press! See what our closest allies are saying about Gitmo. And when you get done with that, read the Australian press and the Canadian press and the German press.”

One wonders why the Bush administration and Congress have been so unwilling and unable to develop a consistent standard for bringing terror suspects to justice in ways that are defensible by our own and the Geneva conventions’ legal standards. As yet, nobody in high leadership positions in the Defense Department has taken responsibility for the law violations in military prisons under U.S. control. Nobody has been dismissed. Nobody felt morally compelled to resign.

For over forty years, I have had the privilege and the pleasure of teaching the proven principles of American constitutional law to college level students. I never thought it possible that anybody would find these principles unsuitable for the prosecution of foreign nationals in U.S. custody.