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Monday, June 16, 2008

Justice Delayed -- For Centuries

only detainees fingers are visible through chain link fence
There are two opinions by two candidates on the Boumediene et al v Bush ruling by the Supreme Court that restored habeas corpus rights to prisoners at Gitmo. One is from a former senior lecturer at the University of Chicago Law School, the other's from an ex-Navy pilot.

Hell, we could quit right here; it's pretty obvious who'd be right. But soldier on we will. First, the senior lecturer from the law school. Barack Obama said, "that principle of habeas corpus, that a state can't just hold you for any reason without charging you and without giving you any kind of due process -- that’s the essence of who we are. I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court and that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday."

The ex-Navy pilot weighed in. "These are enemy combatants," John McCain said of the ruling. "These are people who are not citizens. They do not and never have been given the rights that people in this country have. And, my friends, there are some bad people down there, there are some bad people."

Have I ever mentioned that these neocons always talk to you like you're a freakin' three year-old? Yeah, there are some "bad people" at Guantanamo. Perhaps even a boogeyman or two. But there are "bad people" in civilian jails right now. What McCain seems to be arguing is habeas corpus rights should only be granted to prisoners the state believes are innocent. That's no one. McCain, not surprisingly, doesn't seem to understand the purpose of "The Great Writ."

The surest way to get out of jury duty is to tell interviewers, "If he wasn't guilty, he wouldn't have been arrested." Anyone who doesn't understand why that makes you an unfit juror should probably shut up now. People who equate incarceration with guilt just plain don't understand the concept of justice.

Yet that's the test that the Bush administration has been putting their prisoners to. If they aren't terrorists, they wouldn't be at Guantanamo. That's all the proof that you or I or anyone is supposed to need -- their say-so.

But given what the Bush administration's word has been proven to be worth -- over and over and over, scandal after scandal, crime after crime, lie after lie -- it's kind of worth the effort to just go ahead and doublecheck.

Which is what an independent study of detainees at Gitmo has done.

McClatchy Newspapers:

A study published by a professor at the Seton Hall School of Law found that 45 percent of 516 Guantanamo detainees examined had committed hostile acts against the United States or its allies, and that only 8 percent of them had been al Qaida fighters. The study drew on unclassified Department of Defense transcripts and documents from military tribunals at Guantanamo.

To be fair, a study by West Point's Combating Terrorism Center found that 73% posed a "demonstrated threat." No matter which study you believe, that adds up to a lot of people who aren't a threat. And West Point's study is deeply flawed. "West Point included in its 'demonstrated threat' category anyone who'd committed hostile acts; been identified as a fighter; received training at a camp run by al Qaida, the Taliban or associated forces; or received training in combat weapons other than rifles or other small arms," McClatchy reports.

It's that identification "as a fighter" that's problematic. "The system of identifying men as fighters..." the report goes on, "depended on the accounts of the men who initially detained the 'fighters,' often Afghan commanders looking for bounties from U.S. forces who paid more for men alleged to be Taliban or al Qaida leaders."

In other words, anyone looking to make a few bucks and get rid of someone they didn't like could sell them -- there is no other way to put it -- to the Bush administration and the US military. Another McClatchy article tells us the story of Mohammed Akhtiar, a prisoner at Guantanamo.

"American troops had dragged him out of his Afghanistan home in 2003 and held him in Guantanamo for three years in the belief that he was an insurgent involved in rocket attacks on U.S. forces. The Islamic radicals in Guantanamo's Camp Four who hissed 'infidel' and spat at Akhtiar, however, knew something his captors didn't," we're told. "The U.S. government had the wrong guy." He was "imprisoned at Guantanamo on the basis of false information that local anti-government insurgents fed to U.S. troops."

In an investigation of released detainees, McClatchy found that most were "low-level Taliban grunts, innocent Afghan villagers or ordinary criminals." At least seven had worked for the US-backed Afghanistan government and had no ties to militants.

"The investigation also found that despite the uncertainty about whom they were holding, U.S. soldiers beat and abused many prisoners," the report reads.

But they still get those military tribunals, right? Even without habeas rights, they still get their day in court.

I guess so, if you can call the kangaroo courts of the military tribunals anything other than a sham. Prisoners are denied evidence that would help in their case -- either because such evidence was destroyed to cover up war crimes or because the evidence has been classified. And that "day in court" is entirely theoretical. So far, one has been held (other cases never went to trial). The wheels of phony justice grind slow, I guess. At this rate of one trial every six years, the final detainee of maybe 500 held can expect to see justice in the year 5008 -- 3,000 years from now.

Of course, that ratio's about to be thrown by a whopping five trials of high profile detainees -- just in time for the elections. None of these detainees' guilt is in very much doubt. The highest profile trial will be that of Khalid Sheikh Mohammed -- the so-called "Mastermind of 9/11" who broke under torture. He admits he did it and wants to be martyred. Anyone whose guilt is iffy isn't getting anywhere near a even a kangaroo court any time soon. Even with this new ratio of six trials every seven years, we're looking at 583 years of pre-trial detention. Being found innocent nearly six centuries from now isn't exactly justice.

So, of the two candidates, the senior law lecturer has a better argument than the ex-pilot. Yes, there are "bad people" at Gitmo. But habeas corpus isn't going to set any of them free. It's the people who aren't so bad that the writ is designed to protect. In fact, letting prisoners exercise the right of habeas corpus would help sort out the mess the Bush administration has made of the detainee situation and keep us from wasting time and money on people who are no threat.

And those are, apparently, people John McCain and the rest of the neocons can't be bothered with worrying about.


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