Sunday, June 22, 2008
Some detainees are innocent
Dan Radmacher
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From the RoundTable blog
There has been a lot of hysterical ranting in the wake of the U.S. Supreme Court decision affirming -- for the third time -- that Guantanamo detainees have the right to challenge their incarceration.
Unfortunately, some of that ranting came from Supreme Court justices. In his blistering, overheated dissent, Antonin Scalia warned, "We can say with confident horror that more Americans are likely to die as a result."
John Yoo, a former Bush Justice Department official, huffed in a Wall Street Journal commentary that, until this decision, "the Supreme Court had never allowed an alien who was captured fighting against the U.S. to use our courts to challenge his detention."
That assumption -- that Guantanamo detainees were captured on the field of battle or in terrorist training camps, or are otherwise known and declared enemies of the United States -- runs throughout the commentary opposing the decision, especially in the blogosphere, where many decry the fact that the Supreme Court gave unprecedented rights to terrorists.
But, in fact, most of these prisoners were not terrorists. They were not captured fighting against the United States.
As an investigation by McClatchy Newspapers found, many were turned in for the bounty offered by the U.S. in the months after 9/11, their roles inflated or imagined by those who turned them in -- often in retaliation for personal grudges or tribal rivalries. Many others were low-level foot soldiers for the Taliban who should have been treated as ordinary POWs -- and could have if President Bush hadn't been so insistent on ignoring the Geneva Conventions.
As the lead article in the McClatchy series said, "If the former detainees whom McClatchy interviewed are any indication -- and several former high-ranking U.S. administration and defense officials said in interviews that they are -- most of the prisoners at Guantanamo weren't terrorist masterminds but men who were of no intelligence value in the war on terrorism."
Not only were there few terrorist masterminds among those detained by the United States, at least seven of those interviewed by McClatchy actually worked for the Afghan government and had no ties to militants.
McClatchy was able to confirm this usually after just a few phone calls -- calls these detainees' captors and attorneys all failed to make.
The entire point of the habeus corpus -- literally, "produce the body" -- review requested by detainees is to ensure that there is some justification for imprisonment.
What's amazing to me is how many so-called conservatives actually believe the president should have the power to snatch foreign citizens and hold them indefinitely without having to show any evidence that they had done anything wrong.
As George Will -- no shrinking violet of the left -- wrote in a recent column, "No state power is more fearsome than the power to imprison. Hence the habeas right has been at the heart of the centuries-long struggle to constrain governments, a struggle in which the greatest event was the writing of America's Constitution, which limits Congress's power to revoke habeas corpus to periods of rebellion or invasion."
Predictably, the Supreme Court ruling has been seized by partisans who believe it would make a good election issue. Likely GOP presidential nominee John McCain, who supports shutting Guantanamo down, nonetheless criticized likely Democratic nominee Barack Obama for supporting the decision.
This Supreme Court decision reaffirmed the rule of law and the basic construct of our Constitution. The McClatchy series makes clear that the decision to set up Guantanamo was a panicked reaction to 9/11 -- and that dozens if not hundreds of innocent men or low-level soldiers who were no threat to the United States and had no intelligence value were caught up in the net.
"There were Afghans being sent to Guantanamo because of bad intelligence," Helaluddin Helal, Afghanistan's deputy interior minister for security from 2002 to early 2004, told McClatchy. "In the beginning, everyone was trying to give intelligence to the Americans ... the Americans were taking action without checking this information."
Perhaps in the raw months following 9/11 such a reaction could be excused, but six years later it's time for calm and reason. The United States has locked up some 200 men and all but thrown away the key. Some of those men are indeed the worst of the worst. But some may well be totally innocent -- as were many of the former detainees McClatchy spoke with.
The Supreme Court narrowly set this nation back on the path to liberty. Those who want more justices like a fear-mongering Scalia appointed to the court should think hard about what the four-man minority in this case was actually advocating.
Radmacher is the editorial page editor of The Roanoke Times.
