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The Navy has commenced the court-martial in Norfolk, Virginia, of LtCmdr Matthew Diaz. Commander Diaz is a 19-year veteran who was last detailed to serve as a JAG at Guantánamo—he faces charges that he disseminated “secret national defense information” with “intent or reason to believe that the information was to be used to the injury of the United States or to the advantage of a foreign nation.” The charges carry a possible prison sentence of 36 years. What exactly did Commander Diaz do? It appears from press reports that he mailed a New York law firm a list identifying detainees who were being held at Guantánamo.
The government had a legal obligation to disclose the names to the Red Cross—an obligation imposed by the Geneva Conventions, and followed by fifty years of military tradition. That obligation exists for simple reasons. Throughout human history, persons held in secret detention have been the victims of heinous abuse by their captors. They have been routinely tortured, abused and murdered . . . just as has in fact happened with detainees at Guantánamo, to our nation’s lasting shame.
Holding persons in secret detention constitutes a jus cogens crime under international law, but it is also classified as a war crime under the Geneva Conventions and under United States criminal law—the War Crimes Act of 1996.
The Department of Defense, under the documented direction of Secretary of Defense Donald Rumsfeld, decided to withhold the names of detainees seized in connection with the war on terror, including detainees seized in Iraq. Mary Ellen O’Connell, a professor at Notre Dame Law School and one of the nation’s leading authorities on the law of war, has argued that Rumsfeld’s actions were a criminal act for which he should be prosecuted. Indeed, that may well be a consensus view among rule of law scholars and it is probable that Rumsfeld will be prosecuted at some point, though not by Attorney General Alberto Gonzales, who may well have been complicit in the crime.
The Associated Press responded to the Defense Department’s decision to withhold information about the identity of the Guantánamo detainees by filing a Freedom of Information Act (FOIA) proceeding to compel their disclosure. The Pentagon mounted a number of increasingly absurd arguments in defending this suit, principally saying that it was entitled to withhold the names of the detainees because it would “invade their privacy” for this information to be disclosed. The federal court hearing the matter was not amused by these evasions, and ordered the disclosure of the data. Accordingly, under federal court order, the data was turned over to the AP and published.
So the names of the detainees were required to be disclosed. Their non-disclosure was a criminal act. A federal court compelled their disclosure. And now a Guantánamo JAG is being prosecuted for disclosing the names, with a claim that his action was “with intent to benefit a foreign nation.” What is the matter with this picture?
Even on the growing list of absurd hyperventilations used by the Bush Administration in connection with the Guantánamo detainees, this case takes on a “now-top-this” quality. And this indeed helps to explain why in the earlier proceedings, the Government’s own chief witness on national security classifications refused to appear and testify on the Government’s behalf.
America’s military justice process was once something the country could be proud of. It was streamlined and disciplined, but it reflected unmistakable justice. The persecution of Commander Diaz is of a piece with the cashiering of Commander Swift and Major Mori, the absurd accusations brought against Gitmo defense counsel, the whispering campaign against them with the detainees (in which counsel are labeled by military jailors as “Jews,” “Zionists” and “homosexuals”), and the efforts by Deputy Assistant Secretary Cully Stimson’s efforts to separate the Gitmo lawyers from their clients. All of this conduct is disgraceful and embarrassing. It reflects the values of a totalitarian state and not a democracy that values justice. It brings shame on the military and the nation. And it reminds us how our current crisis in the administration of justice does not stop with Alberto Gonzales and the Justice Department.
More from Scott Horton:
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."