Uncle Sam’s Guantanamo Prison:
Outside the Rule of Law

by Brigid O'Neil

December 16, 2003

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The latest news from Guantanamo Bay is beginning to sound like a modern-day Simpsons episode. After two years of imprisoning more than 600 alleged enemy combatants without charge or counsel in a Cuban prison camp, the Administration announced earlier this month that two detainees -- one a U.S. citizen -- would be permitted limited access to an attorney. As any Simpsons buff will tell you, it’s a classic Mr. Burns move: put on a show of improving work conditions at the nuclear power plant by dressing Homer in thermal underwear.

While it might be an amusing tag line typical of the most noxious character in the Simpsons repertoire, it’s a sad metaphor for the U.S. government’s abysmal treatment of designated enemy combatants.

News of the American prisoner’s counsel came one day before the Justice Department filed a brief at the Supreme Court, adding to suspicions about the Administration’s motives. Their brief asks the court to affirm the government’s indefinite detention of Americans declared “enemy combatants,” without counsel or the ability to dispute the allegations. The Constitutional liberties at risk in this case, including the right to a fair trial and due process, constitute a grave danger for Americans and foreign nationals alike. And nowhere is the startling consequence of Constitutional “concessions” more apparent than the state of Guantanamo Bay.

From the beginning, Guantanamo Bay was wrought with strife. The Geneva Convention, with its guarantee of certain fundamental rights for all prisoners of war, was quickly sidelined by the Administration in favor of its own rules for the treatment and investigation of detainees. In the absence of any rule of law, it didn’t take long for the media to pick up reports of inhumane treatment -- or what one former intelligence officer brazenly called, “torture-lite.” These reports include: firing rubber bullets at those in restraints, beatings for anyone who “made a call to prayer,” sleep deprivation, and forced confessions. The situation became so dire that the International Committee of the Red Cross (ICRC), the only non-government organization to visit the camp, broke a long-standing policy of silence and called the prisoner circumstances an “intolerable situation.” After reading the latest official statements on the health of the detainees, it becomes shockingly clear why the ICRC took such an unprecedented move. According to national news reports, 35 detainees have attempted suicide, 110 have been placed on a suicide watch list, and 1 out of every 5 detainees now receive medication for what one military official can only describe as “clinical depression.”

In response to such damning reports, the Administration contends that the detainees are dangerous terrorists and thus do not deserve any legal protections, much less liberal sympathies. But after two years of investigations at the camp, the Administration has yet to charge any detainee with a crime or bring a case before a military tribunal. Thus, the public has no way to determine what alleged crimes these men are charged with committing, much less whether or not they are guilty.

In the absence of any formidable opposition to the Executive Branch’s actions, the Supreme Court has finally stepped into the ring. In a matter of months the Justices will decide two cases that will rule on a host of alleged constitutional abuses. In the first case, Padilla v. Rumsfeld, the Court will determine whether a U.S. citizen has the right to an attorney before disappearing into a military stockade without charges or contact with the outside world. The second case, involving the two appeals of Rasul v. Bush and Odah v. U.S., will decide if Guantanamo detainees can have access to civilian courts to challenge their detention. The most pressing issue in both cases calls into question the newly claimed Executive Branch power to detain any person indefinitely and without any recourse to judicial review.

Given the blatant lack of any legal protections for these alleged combatants, it is no wonder that former prisoner-of-war Senator John McCain expressed concern this week about what he saw after a recent visit to Guantanamo. Even prisoners suspected of serious crimes deserve fair and open legal proceedings -- after all, our very Constitution was founded on the right to due process and a presumption of innocence. By holding suspected enemies to our highest rule of law and honoring established international treaties, we set a precedent for the treatment we expect of U.S. troops in enemy hands. To undermine this rule of law risks the very livelihood of our Constitution and threatens the way our citizens are treated both at home and abroad. No minor concessions by the U.S. government can change the impression that the secrecy and lack of due process for detainees at Guantanamo Bay resembles that of the Soviet gulags of old. And it doesn’t take the antics of a Mr. Burns or the gullibility of Homer Simpson to figure it out.

Brigid O’Neil is a researcher at the Center on Peace & Liberty at The Independent Institute in Oakland, California. For further articles and studies, see the War on Terrorism and OnPower.org.



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