"The only thing I know for certain is that these are bad people." So said President Bush during his July 17 press conference with British Prime Minister Tony Blair, when a reporter asked whether they had concerns about "not getting justice" for some 660 Muslim prisoners from 42 countries languishing in 8-by-8-foot cells at Guantanamo Bay.
A key purpose of Blair's visit was to seek assurances of fair trials for two British citizens whom Bush had designated on July 3, along with an Australian and three other men, as eligible to be tried under his specially created military-commission regime for as-yet-unspecified war crimes.
Fair trials? After Bush has cluelessly insulted his guest by declaring the "certain" guilt—or, at least, the evil character—of all prospective defendants? The commissions are to be staffed by military officers whose futures could depend on pleasing their commander-in-chief. At no point will any independent tribunal review any conviction. If the boss is already so certain, why bother with trials at all?
In fact, Bush is not bothering with trials—or with hearings, or with any other semblance of due process—for the vast majority of the men who have been bound, gagged, and hooded, and then flown around the world from Afghanistan to be kept in solitary confinement and held virtually incommunicado for as long as 18 months. A few boys, as young as 13, are also at Guantanamo.
Some of the procedures to be used by Bush's military commissions are seriously flawed. And the concessions this week to ease Blair's concerns -- no death penalty, and slightly better access to counsel, for the two Brits and the Aussie—were underwhelming. But the far more fundamental injustice is Bush's lawless, indefinite incarceration of hundreds of men, with no reliable process for separating those who are terrorists from the dozens or even hundreds who may be harmless.
Whatever the six designated candidates for trial may have done, there are reasons to suspect that a substantial percentage of the 660 were Arab students and charity workers, other civilian noncombatants, or hapless Taliban conscripts who were simply in the wrong place at the wrong time. Examples:
U.S. officials, including one senior official, "have privately acknowledged to me that at least a third of the detainees at Guantanamo are completely innocent and don't belong there," says Thomas B. Wilner, a Washington lawyer who represents the families of the 12 Kuwaitis detained at Guantanamo. "And when I say innocent, I mean neither Taliban nor Al Qaeda, nor terrorists nor combatants. I mean students and the like swept up in a bounty hunt."
The administration has tacitly acknowledged the harmlessness of 64 Guantanamo detainees by releasing them. Here is how David Rohde of The New York Times described one after his return to Afghanistan last October: "Faiz Muhammad said he was 105. Babbling at times like a child, the partially deaf, shriveled old man was unable to answer simple questions. He struggled to complete sentences and strained to hear words that were shouted at him. His faded mind kept failing him."
Greg Miller of the Los Angeles Times reported last December 22: "The United States is holding dozens of prisoners at Guantanamo Bay who have no meaningful connection to Al Qaeda or the Taliban, and were sent to the maximum-security facility over the objections of intelligence officers in Afghanistan who had recommended them for release, according to military sources with direct knowledge of the matter. At least 59 detainees ... were deemed to be of no intelligence value after repeated interrogations in Afghanistan....
"Dozens of the detainees are Afghan and Pakistani nationals described in classified intelligence reports as farmers, taxi drivers, cobblers, and laborers. Some were low-level fighters conscripted by the Taliban.... None of the 59 met U.S. screening criteria for [prisoners to be] sent to Guantanamo Bay, military sources said. But all were transferred anyway, sources said, for reasons that continue to baffle and frustrate intelligence officers."
A Newsweek investigation last summer into the Kuwaitis at Guantanamo concluded that at least five of them "may be little more than volunteers for their society's versions of faith-based charities" who had told their families that they "wanted to help Afghans suffering from drought and famine—and then from the war ... but discovered, once the conflict began, that they could not get out. And as the war turned against the Taliban, the Afghan people turned against the Arabs, no matter what had brought them to the country." As these five sought to flee, they were "sold" by a local tribal leader to Pakistani forces.
Some or even all of these claims of innocence and noncombatant status may be false. But the administration has cited no specific evidence at all to justify its detention of these—or any—Guantanamo detainees. Bush has simply announced that all of them are "unlawful combatants," and thus ineligible for prisoner-of-war status under the Third Geneva Convention of 1949. How does he know that? Well, administration lawyers stress, the detainees were not wearing uniforms when captured.
But quite a few of the billions of people in this world who don't wear uniforms are harmless civilians. And many of the Arabs now at Guantanamo were fingered by Afghans and Pakistanis who had even more to gain from lying than your typical jailhouse snitch: U.S. forces had dropped leaflets promising "millions of dollars for helping ... catch Al Qaeda and Taliban murderers ... enough money to take care of your family, your village, your tribe for the rest of your life." Any Arab unlucky enough to find himself in Afghanistan in late 2001 was, as Wilner puts it, "a very valuable commodity."
Instead of having military tribunals separate bad guys from good guys, Bush has marooned all 660 detainees in a legal no man's land. They have been charged with no crimes and given no chance to prove their innocence to any impartial arbiter. This appears to be a flagrant, ongoing violation of Article V of the Third Geneva Convention and other international law rules against arbitrary detentions. Article V states that "should any doubt arise" as to the status of a captive, "such persons shall enjoy the protection of the present convention [as prisoners of war] until such time as their status has been determined by a competent tribunal."
The Bush administration has said it needs no tribunal because it has no doubt that every detainee sent to Guantanamo was an unlawful combatant. Nonsense. Anyone who believes that the bounty hunts and interrogations that routed hundreds of these men to Guantanamo amount to a foolproof fact-finding process is unqualified to be a small-town sheriff.
But under Bush's notion of justice, these men and boys have no legal rights. None. Even if acquitted of any war crimes by military commissions, they could remain incarcerated as enemy combatants. For that matter, even if Bush were to announce today that all 660 would be lined up and shot on August 1, no court in the world could intervene.
Bush won't do anything like that, of course. But he has already deprived hundreds of quite possibly innocent men of liberty for many months, under conditions so dispiriting that 18 have attempted suicide.
Bush's claim that U.S. courts have no power to review anything he and his subordinates do to the Guantanamo detainees is based on a legalistic argument: The naval base remains under Cuban sovereignty, even though the U.S. has complete control under a perpetual lease. Wilner plans to ask the Supreme Court to review this claim of absolute, unaccountable power, which a federal appeals court upheld in March.
Whatever the outcome, Bush's refusal to give hearings to these detainees has been "unworthy of a nation which has cherished the rule of law from its very birth," says the generally pro-American Economist. This travesty of justice has done nothing to make us more secure. Rather, it has put us in greater danger. By making our preachments about human rights seem the rankest hypocrisy, Bush is pouring gasoline onto the flames of anti-Americanism abroad and turning potential friends into enemies.
The Pentagon says it is "constantly reviewing the continued detention" of these 660 men. But Wilner and some other critics suspect that the administration has not released many whom it knows to be harmless because Bush, Donald Rumsfeld, and others are unwilling to admit how wrong they have been. I prefer not to believe that. Surely the president of the United States would not keep innocent men behind bars indefinitely just to save face. Would he?