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.

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Leonard Villa
8 years 10 months ago
You raise some important points but I still get the impression that you deny the reality of the threat terrorists remain for the US and the rest of the world and that the US is the real problem.  We are not dealing with theoretical terrorism or isolated acts but concerted action which is also waging bloody persecution against the Church, which blows up innocent people, and foments unrest wherever Islam is the dominant religion. The threat is real and the fear is real.  We ignore that at our peril and we certainly don't want to imitate the blindness of those like Chamberlain in the 30's who projected civilized values onto Hitler or those whom Lenin called "useful idiots" who thought that the communists were interested in peace and diplomacy rather than world domination.  I would also add that arrested US journalists by North Korea are not the equivalents of suspected terrorists rounded up at Guantanamo. Consider the stats that folks released from Guatanamo go right back to terrorism.
8 years 10 months ago
Thank you.   Do you think Prsident Obama reads America?  Pretty soon you'll be considered a threat to national security.
Greta Green
8 years 10 months ago
President Obama said a lot of things on the campaign trail.  He had zero experience and should not have even been running for the presidency.  Once in office, he faced the reality of the job and the war on terror.  He in fact has continued almost every policy of the Bush administration concerning the war and in fact as seen in Libya, has even gone directly against what he, Joe Biden, and Hilary Clinton said about not consulting congress before using the military without a direct threat.  His big staged event on Guantanimo after election was a farce to appease those who do not pay much attention and elected him.  But not sure why anyone would expect moral follow through from someone who is tied in lockstep with the killing of babies in the womb and in fact its most radical supporter.  He is also against Church teaching and the majority of the people of faith regarding the protection of one man and one woman versus the gay agenda witnessed by his pushing gays on the military in time of war.  He is of course also fighting any conscience clause to Catholic Hospitals or the the chaplins serving our soldiers. 

Tom Maher
8 years 10 months ago

It is not a "human right" to murder people people on the massive scale worldwide over decades that continues to this day.  People who do such things must be prevented from contiuning their crimes.  The scandal would be for society to fail to act vigorously and effectively to permanently stop these massive crimies of terriorism on innocent people. 

Accordingly the Obama adminsitration has just announce yesterday a major policy reversal that will keep Guantanimo Bay prison and trial facility open indefinetly .  Trials will now continue under new laws enacted by Congress for military court procedings of captured combatants that support terrorist activities and mass murder.  This policy change has overwhelming support of Congress and the voters at an over 70% level.   This is now firmly United States policy and practice.  President Obama could not hope to be re-elected which he has announce today he wants to l run again in 2012 with the his proven failure of a policy of closing Guantanimo Bay and trying torrist in cvilian sourts in the United States as if they where ost st ieng soing failed.  This old policy failed miserably and had widespread intense disapproval by evvryone.

Society has a moral obligation to protect itself from this on-going threat of international terrorism by permanent detention of criminals who support terrorst acts against the United States.  This is a needed responese to an on-going large scale and systematic threat of terrorism to society.  

Colin Donovan
8 years 10 months ago
While I am not a JAG officer, as a veteran I am tired of the argument that detention of combattants and trial by military commissions violates the rule of law. Just as civilian law is not a fair standard for judging military justice under the UCMJ, criminal law is not a fair standard for judging the handling of terrorists detained in Guantanimo. Perhaps by a certain utopianism, which fails to recognize that unlike God's law human law is never perfect but is always circumstantial and must balance individual rigths and the common good as best it can, it is not. However, the decent men and women who execute military law and the military commissions deserve the same assumption of good will and innocence which liberals are so quick to grant to individuals captured in the midst of suspicious activities in war zones.
Greta Green
8 years 9 months ago

Candidate Obama was naive and if elected and actually followed through would have been dangerous to America.  Since he is now following the Bush doctrine on almost every issue that concerns the war on terror, we will remain safe.  Major job of the federal government is to keep America safe as part of an overall National Defense which collects huge amounts of taxes every year.  Now if he can learn to be more like Reagan in cutting spending and lowering taxes, we might actually have a solid Republican President instead of a socialist in the domestic arena.

Ana Blasucci
8 years 9 months ago
Just some points of order:

-In paragraph no. 1, you say that national security is cited by regimes to do things the rest of the world sees as human rights violations....
Have you seen who the "rest of the world" is?  Most of the world is wretchedly tolerant of actual human rights (and in many cases just human) abuses.  Much of Africa, much of the Middle East, China, Russia,... well, that coves alot!  Though perhaps it is in most cases the regimes, not the people, that condone such abuses.  But not in all!

-I'm not sure whether the fear of  terrorists on U.S. soil fuels the opposition to civilian trials on the mainland as much as the more substantive concern that subjecting war detainees (as well as many other aspects of war) to the civilian court system will gum up things to blackly comical proportions and undermine legitimate war aims.  Not like it never happens!!

-The Guantanamo detainees have been, to my understanding, classified as "illegal combatants."  The military commissions as well as the proposed civilian trials sought to adjudicate specific charges (e.g. terrorism, murder).  Circumstances of capture mostly caused the illegal combatant label to be affixed.  And, as such, and as defined, the Geneva Conventions specifically exclude them, despite the Supreme Court's seeming re-write.  If any still have not been classified, then, yes, they should be.
If President Bush's military tribunals had been allowed to just go forward, all cases at Guantanamo might have been adjudicated by now, and the prison would be a museum.   

-You seem to decry the concept that, " is better to ignore the human rights issues (of illegal combatants) than to run the risk of freeing those who might harm the country...."  Well, such rights are not being ignored.  A guilded cage will always be still a cage, but the detainees get food, clothing,shelter, medical care, religious support...just as they might expect in North Korea! 
This is to say, respecting the situation and its potential gravity, that even in civilian U.S. prisons some are inevitably there incorrectly.  Do you want to assert that the percentage is greater in Guantanamo?  And elected representatives are supposed to "take their cue" from public opinion, though leadership is called for as well, and consistently.

-Most disturbing, and overarching the aforegoing, one can get the perception that you almost draw a moral equivalency between the U.S. and its allies, and such states as Iran and North Korea, over practices that have a passing superficial surface resemblance.

If such disparate figures as Mr. Bush and Mr. Obama both see it as impractical to close Guantanamo, perhaps there is something to it!

Please, do keep pointing out questionable practices, but do also develop an appreciation for the country whose name your publication bears.  We are an exceptional nation in charity, prosperity, diversity of all kinds, tolerance, useful curiosity, and what have you.  I know at some level this is appreciated by America, but perhaps you should bring in a couple guest columnists to collaborate on some pieces, or to offer commentary from another viewpoint on major issues.  


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