Tuesday, December 11, 2007

Guantánamo as Grotesquery

The Bush Administration has acted ignobly towards the prisoners of the war on terror; it created a regime where suspected terrorists are detained without any expectation of a fair trial. They are geographically separated from the US to prevent them from invoking constitutional protections of due process. They are called “enemy combatants” to prevent them from invoking the Geneva conventions for any form of protection. The Bush Administration has created a world where the prisoners are prevented from any law in protesting their innocence. It will prosecute and judge the detainees before military commissions without the participation of regular courts. This policy set off severe criticisms from every corner of the world which the United States has smugly ignored.

More appalling was Congress’ willingness to abet the acts of the White House. When the Supreme Court ruled that US courts had jurisdiction to decide whether detainees were legally detained in Guantanamo, Congress passed the Detainee Treatment Act of 2005 to strip the courts of such jurisdiction. When the Supreme Court ruled that the military commissions created by President Bush were illegal, Congress passed the Military Commissions Act of 2006 to keep the detainees away from the civilian courts. The law also deprives courts of jurisdiction to hear an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.

There are some who claim that the media has misrepresented the treatment of prisoners in Guantánamo—that it is not an American Gulag. Unfortunately, the weight of evidence including shows otherwise. More importantly, the issue is not whether we should provide our enemies with more kindness than they show towards victims of terrorist attacks or towards their own hostages or prisoners. The issue is whether the world’s most powerful democracy needs to abide by the rule of law.

Guantánamo is a monument to lawlessness. It announces to the world that in times of conflict the US flushes its principles away and that the US can choose not to follow international law when it so pleases.

The US needs to reassume its position of leadership in the international community. Lawyers have performed an admirable task in criticizing and influencing incremental changes in the manner the US treats its detainees. With the help of the media, they succeeded in reversing an infamous memorandum that sanctioned torture. The medical profession has also censured their colleagues who participate in torture. The detainees too have demonstrated more faith in our legal system, by invoking the law despite all attempts to keep them away from the legal system. Only the government remains adamantly against the rule of law.

There is pending legislation that would make habeas corpus available to Guantánamo detainees, to close the base, and to repeal the Military Commissions Act of 2006. None seem to be getting any headway. The Democratic control of Congress has done little to change its direction on this issue.

Only the Supreme Court has consistently acted as a check on the Bush Administration. The Court ruled against Bush’s military commissions and recognized the power of courts to entertain petitions for habeas corpus filed by or on behalf of the detainees. In June this year, it agreed to hear Boumediene v. Bush, to consider a Court of Appeals decision that upheld the provisions of the Military Commissions Act of 2006.

The executive remains the biggest obstacle to changing course on Guantánamo. No aspirant to the presidency has audibly committed his or her administration to restoring respect for the rule of law. The only concrete statement we have from the candidates is Mitt Romney’s incredible call to “double Guantánamo.” Candidates should worry less about appearing soft on terrorism and more about appearing strong on justice and the rule of law. The US has nothing to lose by building peace based on the rule of law. The first step in this journey is to end the abomination that is Guantánamo.

No comments: