Wednesday, March 31, 2004
"The authority to unilaterally keep a defendant locked up - conceivably for the rest of his or her life - used to be reserved solely for kings, who could ignore any part of the realm's legal system. This monarchical power - as I've indicated in reporting on the indefinite imprisonment, without charges, of American citizens Yaser Hamdi and Jose Padilla - has been expanded by George W. Bush to include defendants at Guantánamo." - The Village Voice's Nat HentoffI'm not certain what to make of the situation down in Guantánamo. I can hear the outraged calls of "they were responsible for 9/11, or they might mastermind another attack - let's lock them up and throw away the key!" and about 10 percent of me - the fearful, gut level part that would like instantly to feel safer - agrees.
The better part of me says there must be a more just, transparent way to deal with these issues. Indefinite detention without due Constitutional process smacks of the shameful Japanese internment camp days during World War II, when Americans of Japanese descent were detained as being threats to domestic security.
Some - if not many - of the Guantánamo detainees may indeed be security risks. What confounds the matter is that the public isn't privy to the details of the detainees' cases - allegedly, in the interest of national security, revealing that information would in itself constitute a security risk. The problem is that a closed 'secret' system becomes highly vulnerable to both real and unfounded accusations of abuse.
Only a short historical memory would risk leaving a this broad a breach in Constitutional rights as an article of faith: "freedom requires constant surveillance," even if it sometimes ducks around a corner; we've seen before how undercutting domestic civil liberties while pointing outwards at "the enemy" can be a dangerous distraction.
If the detainees are risks and have broken laws, then "get the ball rolling" sooner rather than later - charge them, process them - using accepted and open legal standards. However, as things stand, I don't believe the detainees would receive a fair trial under a secret tribunal system. Even people with vested national security interest and a great deal of expertise in military tribunal law, like USMC Major Michael Mori, told a Washington press conference in January,
...the military commissions will not provide a full and fair trial. . . . The commission process has been created and controlled by those with a vested interest only in convictions. - The Christian Science Monitor, January 22, 2004If being a threat to security were sufficient reason to detain people indefinitely without being charged, what if we used similar logic to indefinitely detain criminals in the civilian legal system suspected of especially heinous crimes? Perhaps some of us would sleep easier if that were the case, but it gives lie to the treasured American mantra "innocent until proven guilty."
It's true that many criminals remain a threat to others past their scheduled release dates, and while parole hearings often succeed in keeping dangerous individuals behind bars it doesn't always work, as we can read any day in the headlines. However, declaring civilians enemy combatants and "locking them up and throwing away the key" doesn't seem like the best answer.
Let's be practical. We can't leave detainees in a holding camp until the "war on terrorism" is over. This War is going to be a far longer, more drawn-out affair than many of us imagine, and will persist years, even decades after the immediate war in Iraq is over. If you don't believe that's the case, then ask yourself this: what "markers" will we use as a measure to decide when things have returned to normal? Will it be when a new government is in place in Iraq? When we track down and stop all terrorist groups and "sleeper cells" within our borders? When the color of the Homeland Security Alert System drops below Yellow? The answer isn't so clear-cut: as a nation, it looks like we will be in a state of "post-9/11 PTSD" for the foreseeable future.
Achieving that old fashioned, "good-feeling" perception of world and national security will be a Sysiphean task, never quite completed despite much toil. But allowing "creeping fear" to quash our beliefs in equal protection under the law and due process will be, in the end, a poor tradeoff. We would never be fully certain of our safety, even if we do implement draconian limits on civil liberties, because national security is never 100% air-tight, even in the most repressive or self-protective of nations.
To paraphrase one 'Dr. Puvogel' - a minor character menaced by a near-unstoppable metallic monster in the X-Files episode Salvage - after an event like 9/11, "Safe? Where's safe?" That fact may be a bitter pill for us as a nation to swallow, but it's not a justification to amputate our Constitutional protections.