The Court Acts

President George W. Bush received a long-overdue rebuke from the Supreme Court June 29 for the ill-conceived and illegal manner in which he has conducted the “war on terror.”

In Hamdan v. Rumsfeld the Court ruled against the administration’s attempt to try terrorist suspects in “military commissions” rather than in court-martial proceedings, which are mandated by the Geneva Conventions. In short, the Court insisted that even in a time of national emergency the president of the United States is not above the law.

To what extent the ruling will curb the administration’s shameful policies remains to be seen. But the three prisoner suicides that occurred on June 10 at the U.S. prison at Guantánamo should remind us of what is at stake. Those suicides were shocking, but they shouldn’t have been surprising. Dozens of inmates have attempted suicide since the prison opened in 2002. Some have tried hanging themselves, others have eaten paint chips or hoarded pills, still others have tried to starve themselves.

The suicides were greeted by the U.S. government with remarks so absurd they demonstrate just how far down the rabbit hole our policy in the “war on terror” has gone. A State Department official described the three suicides as “a good PR move” designed “to further the jihadi case,” and the director of the jail even called them “an act of asymmetrical warfare.” In truth, the suicides were more likely the desperate acts of men who saw no end to their incarceration. Guantánamo’s prisoners have inhabited a psychological and legal limbo in which, until now, due process has been unknown; most have never been charged, and many have suffered abuse at the hands of U.S. personnel. This is not to say that killing oneself is necessarily apolitical. Still, inmates who undertake suicide as a political act have likely arrived at the despairing belief that taking their own lives was their only choice.

Yet even extreme psychological stress is hardly the worst mistreatment visited on prisoners in the military detention system. Cases of asphyxiation by water immersion, mock executions, burning, dog bites, rape, body suspension, electrical shocks, forced masturbation, and other appalling abuses have been reliably documented. Most can be described by only one word: torture.

Such abuses have been the inevitable result of the Bush administration’s efforts to fashion a military-prisoner policy freed from the prohibitions against torture in U.S. and international law-restraints, the administration claims, that hinder effective interrogation. Coupled with a detention system staffed by ill-trained interrogators given mixed signals by superiors (one unit’s slogan: “No blood, no foul”), this policy all but guarantees widespread abuse. Indeed, to date more than one hundred prisoners have died in U.S. custody worldwide. Nearly thirty of those deaths have been ruled homicides by the military.

The point of rehearsing these abuses isn’t to elicit sympathy for the inmates at Guantánamo or elsewhere. Certainly some terrorists-in-waiting exist among them. Yet nearly all inmates, innocent and guilty alike, are being held indefinitely, and are subject to inconsistent rules that have allowed some to go before military tribunals and federal judges, while others are refused all contact with the outside world-even a Red Cross visit. This system cannot justly separate real threats from false ones. The cases of abused and suicidal inmates demonstrate the acute need for transparency, oversight, and accountability, a need that the Supreme Court has now thankfully recognized.

Until now, the president and the Republican-controlled Congress have made such oversight nearly impossible. The president has said that the Guantánamo situation poses a “serious concern” to him, and that he wishes he could close the prison. Yet he signed the Detainee Treatment Act of 2005-which strips the courts of jurisdiction over prisoners’ habeas corpus petitions. Presumably, in the wake of the Hamdan decision, the Court will eventually be asked to rule on the constitutionality of this act.

Basic questions demand to be answered. Five years into the “war on terror,” does the administration really believe the majority of Guantánamo prisoners are of any value to U.S. intelligence-gathering efforts? Four years after the prison camp opened, a mere ten inmates-about 2 percent of the prisoners-have been formally charged. What of the other 98 percent? How long will they languish there, many suffering inhumane treatment?

One hopes that the Hamdan decision is a first step toward subjecting Guantánamo and other military prisons to legal restraint. It may also help reassure our allies that the values of democracy the United States defends publicly are the ones we actually practice. Before the United States mortgages any more of its moral standing for imagined expediency in the fight against terrorism, the current terror-detainee system must be abolished.

June 29, 2006

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