I was stunned to read an opinion piece (free registration required) by Morris D. Davis, the chief prosecutor for the Defense Department’s Office of Military Commissions, defending the Guantánamo prison system as a “clean, safe and humane place for enemy combatants.” His plea to save Guantánamo from a well deserved death seems almost heartfelt:

Reality for Guantánamo Bay is the daily professionalism of its staff, the humanity of its detention centers and the fair and transparent nature of the military commissions charged with trying war criminals. It is a reality that has been all but ignored or forgotten.

He goes on to defend the military commissions process whereby “enemy combatants” are charged and tried for their “crimes,” saying, “the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes.” While the facts and fairness of the military commissions process are indeed up for debate, even if they weren’t, Davis’s explanations miss the point entirely.

I don’t care if Guantánamo is humane. I don’t care if the Military Commissions Act actually provides a fair trial. The problem with Guantánamo lies not with the process, but in the question of how these “enemy combatants” were captured and brought to their Cuban prison in the first place. Why are these people even in our custody? Did we overstep our bounds in capturing and extraditing them to our military justice system? These are the questions that need answering.

So far, Guantánamo officials have released 340 captives, three under the age of 16, and determined that 110 others are not enemy combatants and should be released. As the camp originally held 775 detainees, that means that over half of the prisoners have been or will be released. The Pentagon has actually said that only about 70 detainees will likely face trial. That is an astounding number, and far out of line with respect to traditional American justice. In 2003 - 2004 (pdf), of 140,755 people who were arrested for a federal crime, 116,363 were prosecuted, or 83%. Currently in Gitmo, detainees held for allegedly committing the most serious of offenses; that of killing, treason, and other war crimes; charges that any self-respecting police chief, FBI agent, or federal prosecutor would make damn sure are grounded in reality before deciding to even arrest and hold a suspect; will be prosecuted at a rate of 9%. The question is not whether these people receive a fair trial (though that is still a good question to ask), but how these people were captured, what is the strength of the evidence against them, and who decided that it was OK to hold these people for years without charging them with a crime.

A fair amount of the detainees in Gitmo appear to have been simply in the wrong place at the wrong time. For example, the list of allegations against Muhamed Hussein Abdallah is woefully circumstantial:

1. The detainee is a Somali who lives in Peshawar, Pakistan under the United Nations Refugee status.
2. The detainee provided information on several non-government organizations.
3. The detainee was arrested in a raid on suspected Al Qaida residences and support facilities connected with the Afghan Support Committee (ASC).
4. ASC is listed on the United States Secretary of States terrorist exclusion list as an organization who is engaged in terrorist activities.
5. The detainee was a resident of Jolazai refugee camp.
6. Arab militants have been associated with the Jolazai refugee camp since the 1980’s when it was a reception station in the North West Frontier Providence, where newly arrived recruits would receive training prior to being sent to fight the Soviet troops.
7. Militants associated with Osama bin Laden’s organization were traveling through the Jolazai refugee camp in route to India.

Basically that boils down to being in the wrong house and living in a refugee camp that is known to have terrorists in it. Certainly it is possible that not all people in this refugee camp and not all people living in the house in question are terrorists. If this kind of evidence was brought before a prosecutor, the case would be dismissed immediately or charges never would be brought in the first place.

Another point to consider is that a lot of detainees in Guantánamo are citizens of other, friendly countries. For example, there have been 8 British detainees, 7 French detainees, 5 Turkish detainees, 9 Russian detainees, and 140 Saudi Arabian detainees. The US has normal, friendly relations with all of these countries and at least on paper, we believe in their justice system as we believe in ours. Why have we not simply extradited the people we have captured in Iraq and Afghanistan and let the foreign governments decide whether these people are worth holding and/or charging? By what authority do we continue to detain these “enemy combatants?”

There is ample evidence to show that we are treating modern terrorists differently than we have treated terrorists in the past, and that our approach is more draconian, less humane, and less well thought out. In the 1920’s, the Bolsheviks started a campaign of bombings in America designed to advance the spread of revolutionary communism. As Chuck Morse points out, justice was swift and fair:

The FBI proceeded to round up over ten thousand suspected alien terrorists over the next seven months. By January of 1920, 247 alien terrorists had been deported. Those who could not be deported, partially due to insufficient evidence, were freed. The Bolshevik terrorist infrastructure was virtually destroyed in America due to swift action.

Why aren’t we doing the same thing in Iraq and Afghanistan? Detainees that are captured from foreign countries should be deported. Domestic detainees should be turned over to local authorities. In the rare event that we have absolutely no faith in the domestic or foreign justice system, or if detainees run the risk of being tortured if deported, detainees should be held in the countries they were captured, and given a quick and fair trial. There is absolutely reason to move detainees to a foreign country and hold them for years, no matter how fair the eventual trials may or may not be.

I can’t for the life of me figure out how Guantánamo helps fight the war on terror. If the idea is to remove terrorist organizers and leaders from the battlefield, then our effort is inadequate. There are plenty of people who are captured in Iraq and Afghanistan who are never brought to Guantánamo. Plus, simply deporting or turning over these suspects to national authorities would accomplish the same ends. If the idea behind Guantánamo is to bring terrorists to justice, we fail in that as well. If only 9% of detainees are ever to face trial, how can we say we are being just or efficient in our detention methods?

No matter how you look at it, Guantánamo does not serve any of our goals. It does, however, make us weaker. Our leaders have suspended the right of habeas corpus, a right enshrined in our Constitution and in the laws of all Western countries, and have sullied America’s high morals with their base actions. Guantánamo does not help us fight or win the war on terror, and it erodes our moral standing to even wage that war in the first place. So it does not matter if, as Morris D. Davis claims, the Military Commissions Act provides for fair trials. Most detainees being held in Gitmo should never have been arrested or held in the first place, and most will never even see those “fair” trials. This practice is shameful, it is wrong, and it should end now.

Care to disagree? Does Gitmo help fight the war on terror? Let’s take it up in the comments…

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