Arrow-right Camera
The Spokesman-Review Newspaper
Spokane, Washington  Est. May 19, 1883

Opinion

The new face of Guantanamo

David Sarasohn Portland Oregonian

This is what passes, these days, for good news in the massive constitutional and international public relations fiasco that is the U.S. prison camp at Guantanamo Bay, Cuba.

Shane Kadidal, of the Guantanamo project at the Center for Constitutional Rights, representing prisoners, recently told the Financial Times: “The medieval physical brutality has more or less been cleared up in the wake of the Abu Ghraib scandal.”

On that reassuring note, last week the Supreme Court heard arguments on the legal morass of Guantanamo and the position of the Bush administration and the previous Congress that it is none of the business of the U.S. court system. The government maintains that the current system for resolving the cases of the inmates – a military tribunal structure that was invented on the spot and regularly breaks down like a ‘56 Studebaker – works just fine and that it shouldn’t matter to the Supreme Court if it doesn’t.

Currently, there are 305 prisoners at Guantanamo, with 15 defined as “high-value detainees.” Former Defense Secretary Donald Rumsfeld famously defined all the prisoners as “the worst of the worst,” but we keep releasing them by the dozen and the population is now about half what it once was.

Originally, the administration maintained that no judicial processes were required, that it could hold prisoners for as long as it wanted. In 2004, the Supreme Court ruled that it didn’t work that way, that the prisoners had to have some legal recourse.

In response, the administration set up the military commissions, and Congress passed the Military Commissions Act, seeking to bar U.S. courts from the cases. So far, the Court of Appeals for the District of Columbia has agreed, but nobody bars the Supreme Court when it doesn’t want to be barred. So the court, or at least five members of it, could consider the workings of the system set up in the court’s place. In the government’s brief, U.S. Solicitor General Paul Clement assured the justices: “The detainees now enjoy greater procedural protections and statutory rights to challenge their wartime detentions than any other captured enemy combatants in the history of war.”

But even without the “medieval physical brutality,” prisoners can have limited or no access to the charges, evidence or witnesses against them; evidence gathered from torture is admitted; and military authorities have been known to make it clear what verdict they expect. Besides, as Rumsfeld once explained, “Even in a case where an enemy combatant might be acquitted, the United States would be irresponsible not to continue to detain them until the conflict is over.”

Aside from all that, it’s a model system.

“I have one client who was held down there on the basis of an allegation that, two years after he went to Guantanamo, an alias of his name appeared on a computer’s hard drive of somebody who might have been associated with al-Qaida,” Tom Wilner, a partner at a Wall Street law firm, told National Public Radio.

“He asked, ‘Well, I don’t have any aliases. What’s the alias?’ They said, ‘We can’t tell you. It’s classified.’ He said, ‘Where was the computer, whose was it?’ ‘Can’t tell you. It’s classified.’ ‘When was this?’ ‘Can’t tell you. It’s classified.’ “

Navy Lt. Cmdr. Charles D. Swift, assigned as a defense attorney, told the Senate Judiciary Committee last year, “The few rules that did exist to govern commission proceedings were subject to constant revision.” Swift quoted a prosecutor, Air Force Capt. John Carr, as saying the system was “a half-hearted and disorganized effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged.”

Still, the government maintains, this is no concern of the Supreme Court because Guantanamo is not on U.S. territory. It’s under Cuban sovereignty – although if Fidel Castro showed up one day and asked for the keys, we’d have to tell him he misunderstood.

Still, Seth Waxman, attorney for the prisoners, told the justices, “the United States exercises – quote – ‘complete jurisdiction and control over this base.’ No other law applies. If our law doesn’t apply, it’s a law-free zone.”

Attempting to recover its considerable lost ground in the world’s opinion, the United States might be looking for a new public image.

The one it wants probably isn’t “law-free zone.”