The Detention Scandal

National security is the card played time and again by regimes seeking to justify what the rest of the world sees as violations of human rights. To find examples of such self-justification, one needs only to recall recent events in Iran and North Korea or think back to the saga of the two U.S. journalists imprisoned by North Korea in 2009 on charges of spying. The United States and other countries have fittingly called on leaders in these nations to cease the infractions of human rights all too often justified in the name of stability or security. Fair enough, but shouldn’t we Americans apply the same high-minded principles to our own conduct?

A case in point is Camp Delta and the two other units established shortly after the terrorist attacks of Sept. 11, 2001, as a detention center at the U.S. military base at Guantánamo Bay. The Bush administration rounded up hundreds of individuals suspected of terrorism, incarcerating them and suspending the usual habeas corpus provision of the U.S. Constitution, which requires that anyone imprisoned first be charged with a crime. The detainees were, after all, confined on a military base outside the United States. Moreover, the prisoners were denied the protection to which they would be entitled as enemy combatants under Article 3 of the Fourth Geneva Convention. The 775 detainees were not protected by U.S. law, nor were they prisoners of war. What, then, were they? They were suspects in the so-called war against terror, that nebulous term invented after the frightening attacks on two major U.S. cities. They were individuals suspected of complicity in terrorism but not charged with any particular crime, as would be required under U.S. civil law. Nor were they captured enemies subject to a military tribunal and the rules of military engagement. War against terror was a notoriously elastic term.

A series of U.S. court rulings between 2004 and 2008, including two Supreme Court decisions, denied these arguments. Formal tribunals were to be set up to determine whether the detainees could correctly be considered enemy combatants. If so, they were to be treated according to the Fourth Geneva Convention. If not, they were to be protected by U.S. constitutional law: unless formal charges were brought against them for specific crimes, they were to be released.

Meanwhile, the rest of the world could only wonder at the strange turns that justice had taken in a nation that claimed to hold its law sacred. U.S. courts forced the administration to reconsider its premise that almost anything is justified in the interest of national security, but it had taken years to do so. All the while, tales of routine torture, religious insult and gross humiliation multiplied, leading Amnesty International to describe Guantánamo as a “human rights scandal.”

That scandal would finally be removed at the end of the Bush administration. At least, it seemed so. President Obama announced on the day after his inauguration in January 2009 that the prison would be closed within the year, thus ending “a sad chapter in American history,” to use the president’s words during his campaign. But early last month the White House, reneging on its promise, announced that the Guantánamo facilities are to remain in operation indefinitely. Trials will resume there for those who can be charged with crimes, but Guantánamo will continue to serve as a holding pen for the 48 prisoners who can probably never be legally tried because of torture and other dubious methods used to extract supposed evidence.

The blame should not fall on the Obama administration alone. Congress, taking its cue from the American public, has strongly opposed closing the centers or even trying the prisoners on American soil out of fear of turning loose suspected terrorists. It is better to ignore the human rights issues than to run the risk of freeing those who might harm the country, the American public and its leaders seem to agree. Once again, as 10 years ago, fear of terrorism trumps the principles of respect for the rule of law and human rights by which Americans judge other nations—including Iran, Libya and North Korea.

So the Guantánamo facility remains unshuttered and home to 172 detainees today. It stands, in the eyes of many, as an indictment against a nation so blinded by its own security interests as to compromise the very principles it is preaching to the rest of the world. In the latest attempt to put a definitive end to the scandal of Guantánamo, Senator Lindsey Graham, Republican of South Carolina, recently introduced a bill to reaffirm legal protection for detainees and speed their trials. The presumption is that the detainees were responsible for past terrorist acts or at least affiliated with terrorist organizations. Senator Graham’s bill challenges the United States, yet again, to be true to its long-held standards: prove the charges against the prisoners or release them.

This article appears in April 11 2011.