The Guantánamo Follies

By Scott Horton

The New York Times delivers a well placed editorial volley today focusing on two hugely embarrassing stories which have emerged out of Guantánamo in the last week, followed by the Supreme Court's decision not to examine the issue of habeas corpus coming out of Guantánamo – or at least not until the petitioners have exhausted the appeals process crafted by Congress in the Military Commissions Act of 2006.

The Hicks Plea Bargain. The first case to come before the Military Commission involved an Australian outback rancher named David Hicks, who was seized near the start of hostilities in Afghanistan outside the city of Kunduz by forces of the Northern Alliance. Hicks was accused of furnishing "material support" to Al Qaeda under a statute enacted in December 2006 (long after the acts committed). After being vilified by administration spokesman as a "vicious killer" who was "determined to kill Americans," Hicks was given a plea bargain deal under which he will serve nine months in Australia. Writes the Times:

Americans who support Mr. Bush’s policy on prisoners accepted its premise: that the people in Guantánamo are so dangerous that letting any out will compromise American security. If an injustice were committed here or there, Americans would just have to grit their teeth. How does that square with allowing Mr. Hicks to go home and quickly go free? Worse, the plea bargain seemed timed to help Prime Minister John Howard, a Bush ally whose inaction on the case was becoming a re-election issue in Australia.

For Americans, like us, who are sickened by the Guantánamo prison, the Hicks bargain was emblematic of its lawless nature. If there was evidence that Mr. Hicks was a terrorist, we have yet to see it. He was declared an illegal combatant by a kangaroo court created to confirm that designation, which had been applied long before. He was denied a lawyer and censored by the court when he tried to pursue abuse charges. Under his plea bargain he gave up his right to sue, repudiated his own accounts of abuse and was even barred from talking to the news media about his experience.

The logic of this criticism is unassailable. And indeed, as of today, the arrangement has drawn criticism across the political spectrum. It really seems possible to interpret in only two ways: either the administration never actually thought Hicks was a serious malefactor, or whatever Hicks' culpability, politics trumps justice. And politics clearly required sweeping the case under the carpet because it had become a political liability to John Howard, a stout ally who was now struggling for re-election. Either way, what emerges is a highly cynical take on the justice process. It exists to titillate or to spread fear, in furtherance of a partisan political agenda. The notion of simply doing what is right, and of punishing a malefactor for his wrongdoing, seems to play no role whatsoever. The correct word is the one the Times chooses: lawless.

Torture, Secrecy and the CSRT. The other kangaroo court convened at Gitmo is the Combat Status Review Tribunal, or CSRT for short. Comparing it with a kangaroo court is an insult to kangaroo courts. In this process, the defendant doesn't know what he is charged with, what evidence is presented against him, or who is testifying against him. He has no right to counsel. He has no right to call his own witnesses or to produce evidence on his behalf. (The Pentagon says he can put on his case, but the transcripts show that this simply isn't so.) This is a brand of justice beneath anything known in the English-speaking world since the Middle Ages, certainly inferior to the procedures followed in the Court of Star Chamber, which was the model of injustice for the Founding Fathers. But like the Star Chamber, the CSRT is already intimately linked to brutal torture – and this is how it will be known to posterity. Writes the Times:

[I]t is Mr. Bush’s policy that no prisoner may allege torture in public, so this is what appeared in the transcript:

PRESIDENT (of the tribunal): Please describe the methods that were used.

DETAINEE: (CENSORED) What else do I want to say? (CENSORED) There were doing so many things. What else did they did? (CENSORED) After that another method of torture began. (CENSORED) They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And if I didn’t replay what I heard, he used to (CENSORED).

Officials defended this censorship by arguing that interrogation methods are so secret that they cannot be discussed, even by the prisoner. But they also said that Al Qaeda members are trained to claim torture and that Mr. Nashiri lied. If so, why censor the transcript? His answers can’t help Al Qaeda. Tragically, the most likely answer is to spare United States intelligence agents and their bosses, who could face charges if the Military Commissions Act is ever repealed or rewritten. The law gives a retroactive carte blanche to American interrogators for any abuse they may have committed.

The transcripts are censored because the allegations of torture are almost certainly true. If they weren't, there would be no reason to censor them. And the Times is correct on another key point: if evidence extracted from torture can be used, then torture will persist. As Prof. John Langbein concludes in his monumental historical study, Torture and the Law of Proof:

The . . . law of torture whose rise and fall is chronicled in this book was one of the worst blunders in the administration of justice in all of Western history. As recent events have shown, that history has a continuing power to instruct and caution us. The abiding lesson is that coercion is the enemy of truth, and that efforts to tolerate and regulate coercion in the service of truth have routinely failed across the ages.

The CSRT proceedings furnish painful further evidence of a criminal system which has been instituted and perpetuated by the United States in Guantánamo. These proceedings have turned the tables: accused are made to appear to be martyrs, and the accusers are made to be the criminals. How can such a process possibly serve the interests of a nation build on a promise of "equal justice for all?" It makes a mockery of the United States and all the values proclaimed in its Revolution.

Habeas corpus offers the basis to test and remedy these injustices. However, the Supreme Court, citing the tradition of judicial prudence, has declined to look at the procedures in Guantánamo until further appeals have been taken – meaning a delay of a year or more. During this period there is only one responsible thing to do. Congress must restore habeas corpus so that the courts can start the slow process of expunging the stain called Guantánamo. At this point, however, the stain is so deep, I despair that it can ever be removed entirely.