in a few years, i expect that guantanamo will be uttered in the same breath by historians as japanese interment during world war two, the palmer raids during the 1920s, lincoln's decision to suspend habeas corpus, and the alien and sedition act. while the decision to create "camp x-ray" in november 2001 could, at least initially, be explained as a knee-jerk reaction by a traumatized nation, there simply is no excuse for the fact that these people are still detained two years later. even worse is the fact that the american news media's coverage of the detentions has been sporadic.
while most information about the detainees and the conditions they live in has not been publicized, what little has leaked out is pretty bad. some of the detainees are children, and there have been a remarkable number of suicide attempts among the detainees (remember, these people are supposedly islamic fundamentalists, a religion that strictly condemns suicide). for a while we have known that most of the detained were detained for the most part on the word of locals in afghan. but this article mentions that the u.s. military was paying locals to find detainees. thus some of the detained, not because of any connection to terrorists, but "were kidnapped for reward money offered for al Qaeda and Taliban fighters."
while the u.s. media looks the other way, the guardian has published good article in which it interviewed the few detainees that were released (all were held for more than a year and none were ever found to be dangerous or connected to terrorists in any way).
as the guardian article notes, the detentions in guantanamo are entirely unnecessary. the stated purposes of the detentions could have been met while complying with existing international law. instead, the bush administration made up the concept of "illegal combatants," a new class of detainees who have all of the disadvantages of prisoners of war, but none of their rights:
Practical templates were available in international law that, on the face of it, would have allowed Washington to satisfy its aims. It remains a mystery as to why the Bush administration chose not to follow international law, but to make up its own. Its first step away from international norms was to refuse to categorise the Afghanistan captives as prisoners of war. One source told me of a - possibly apocryphal - story that Bush and his aides were going through the Geneva convention when the president came to the part that declares PoWs must be paid between eight and 75 Swiss francs a day. At this point, the story goes, Bush lost his temper and ordered his people to find a way for the captives not to be PoWs.
Officially, the US hides behind the fact that the resistance in Afghanistan didn't dress like soldiers. It is true that, like CIA operatives in the field in Afghanistan and Iraq, and like many of the Northern Alliance allies of the US, the Taliban and non-Afghan fighters didn't wear uniforms, but that does not prevent them being declared prisoners of war. Article 5 of the Third Geneva Convention is clear: any captured belligerent whose status is uncertain should be considered a PoW until their status is settled by a 'competent tribunal'. The US carried out hundreds of these tribunals during the 1991 Gulf war and in the recent Iraq war. In Afghanistan, it didn't. Asked why there hadn't been any tribunals for the Afghan captives, Major John Smith, a military attorney in the Pentagon department organising the forthcoming trials of Guantanamo detainees, says it is because the president decided there was no need.
'The president's decision was that there was no doubt these individuals did not qualify for PoW status and a tribunal wasn't required,' he says.
most damning of all, comes from the recent news that the u.s. is contemplating releasing 140 of the detainees because they have determined that they pose no threat. but if the government has determined they pose no threat why haven't these people been released yet? why because the bush administration is "waiting for a politically propitious time to release them." in other words, they admit that there is no basis for holding them any longer and yet they are still detained because bush is worried about how it will play politically. another political consideration going into when they will be released is the supreme court's decision to hear whether a court has jurisdiction to decide on the the legality of the detentions. when the court decided to take the case, it "accelerated" the time table for the release. ironically, this is precisely the reason why judicial review is so serious. when the deprivation of people's rights depends upon the sole discretion of the executive branch–the only branch of government which is always exclusively controlled by a single party and which, like the other political branch, is always concerned with reelection–it is only natural that those rights become nothing more than a political football.
i am somewhat hopeful now that the supreme court has decided to review the matter. this type of detention without any court access is so unprecedented that even conservative justices are likely to greet the administration's argument with a high degree of suspicion. also, the fact that the court will hear arguments on the case and issue a decision within the next nine months practically guarantees that the story will reach the front pages of americans newspapers on at least two days, the day of argument and the day of the decision. i don't think the detentions can withstand any outside scrutiny, whether by the media or the courts. hopefully they will finally be brought into the light of day soon.
