As evidenced by the recent outpouring of generous support for the people of Haiti, America remains a caring and compassionate nation. But when it comes to human rights and the rule of law, the United States falls woefully short, trailing behind the rest of the civilized world. Case in point, the US government is seriously considering indefinite detentions for some Guantanamo detainees.
Sen. Lindsey Graham said last weekend that the White House may support a new law that would allow the indefinite detention of some terrorism suspects. Meanwhile, last month the Guantanamo Detainee Review Panel finally recommended which detainees should be released and which ones should face trials. It came as little surprise that more than 100 detainees were cleared for release while about 35 will be tried either by federal court or military commission. Yet surprisingly, approximately 50 detainees have been recommended for indefinite detention without trial. The administration claims they are considered too dangerous to be released, but too difficult to prosecute even in the conviction-friendly commission system.
These 50 detainees present a perplexing situation for the United States. The United States prides itself on being a world leader on human rights and the rule of law, and has been consistently outspoken in its criticism of human rights abuses by other nations. But in its zeal to demonstrate a “tough on terrorism” stance, the United States has failed to live up to these values.
One of the hallmarks of the American judicial system is the presumption of innocence. If arrested for an alleged crime, we have the right to a trial, to confront our accusers and to present evidence in our defense. Indefinite detention bypasses these rights, short circuits due process and turns the presumption of innocence on its head. In short, it presumes guilt and offers no remedy to challenge that presumption.
It is tempting to assume the decision to hold detainees indefinitely is based on a review of credible evidence. But if the evidence is so persuasive, why not introduce it in a court of law and secure a legitimate conviction? Time and again, federal courts have proven fully capable of handling terrorism cases. In fact, the Bush administration successfully prosecuted at least 319 terrorism or terrorism-related cases in civilian courts.
If the evidence is not reviewed by a court of law, who does review the evidence and determine the fates of individual suspects? The evidence is classified and the identities of those making the determinations are closely guarded. This process is entirely secret and inherently un-American. A system that authorizes indefinite detention based on secret evidence can only result in distrust and suspicion.
I represent Fayiz al-Kandari, a Kuwaiti citizen who has been imprisoned at Guantanamo Bay for more than eight years without a trial. In my July 2009 letter to The Washington Post, I explained how every time I visit my client he asks whether I have news of justice for him. Each time, I am forced to answer, “I have no justice today.” Assuming Fayiz would someday have his “day in court,” I prepared him for the probability that “justice” would come in the form of a military commission – a second-rate judicial system largely designed to permit rumor as evidence. Unfortunately, I am now left to wonder whether Fayiz will ever be afforded any semblance of justice.
Admittedly, under the laws and customs of war, a nation may detain “enemy combatants” for the duration of an armed conflict. But in an “armed conflict” as ambiguous as the “war on terrorism,” can this same standard possibly apply? If so, when can we expect the armed conflict to end? Terrorism dates back to the 14th century or earlier and has been employed throughout history. If the war on terrorism will not end until terrorism no longer exists on Earth, Fayiz will never breathe free.
We are at a key juncture in our nation’s history. We can give in to political expediency and fear or we can restore the rule of law and uphold our country’s founding principles. Let’s not go down the slippery slope of indefinite detentions.
Not everyone can pay for the news. But if you can, we need your support.
Truthout is widely read among people with lower incomes and among young people who are mired in debt. Our site is read at public libraries, among people without internet access of their own. People print out our articles and send them to family members in prison — we receive letters from behind bars regularly thanking us for our coverage. Our stories are emailed and shared around communities, sparking grassroots mobilization.
We’re committed to keeping all Truthout articles free and available to the public. But in order to do that, we need those who can afford to contribute to our work to do so.
We’ll never require you to give, but we can ask you from the bottom of our hearts: Will you donate what you can, so we can continue providing journalism in the service of justice and truth?