Justice At Guatanamo Bay

Around 550 al-Qaeda and Taliban prisoners captured during the US invasion of Afghanistan following the September 11th attacks of 2001, and in subsequent actions part of the War on Terrorism, are being held at the United States Naval Base at Guantanamo Bay, Cuba. The detainees at Guantanamo Bay are of special classification, being either foreign nationals that have received al-Qaeda training or fighters which commanded 300 or more personnel. Many of the prisoners are being held indefinitely for purposes of interrogation aimed at preventing future terrorist attacks, and for eventual prosecution for their alleged crimes. The issue of how the U.S. government should handle the prisoners at Guantanamo Bay recently gained more public scrutiny during the Senate confirmation hearings of Alberto Gonzalez, nominated for the post of U.S. Attorney General by President George W. Bush. As White House counsel during the first Bush administration, Gonzalez played a major role in the development of the administration’s legal policy with regards to the treatment of captured al-Qaeda and Taliban members at Guantanamo Bay. Many have argued that this policy has allowed American forces to violate U.S. and international law, as well as moral standards of decent and humane treatment of prisoners. These critics display a lack of understanding about the laws they speak of, the nature of the war on terrorism, and the type of morality which should drive American policy development in prosecution of this war. Many, especially civil rights activists like members of the American Civil Liberties Union, argue that the prisoners at Guantanamo Bay are entitled to due process under U.S. criminal law. They claim that the civil rights of the al-Qaeda terrorists and Taliban militants are being violated because they are being held indefinitely without being charged for any specific crime. According to these critics of the Bush Administration, the Guantanamo Bay detainees should receive the legal rights established by the U.S. Constitution for American citizens. But there is no reason why U.S. criminal law is relevant to these prisoners.

They are, of course, not American citizens, and therefore, are not entitled to any legal rights under the Constitution of the United States. Furthermore, the prisoners are not being held in the United States, but on a military base in Cuba, where U.S. criminal law does not apply. Their detention is part of the ongoing war against terrorism, and is more similar to a military operation than one of law enforcement. U.S. criminal law was established to govern a civilized democratic society, to keep order and maintain justice while protecting the rights of American citizens, not to set the rules for the waging of war by the United States military.

Champions of civil rights in the United States should stop trying to obstruct the effective prosecution of this war by potentially sabotaging a vital source of information needed by U.S. forces to prevent terrorists from striking U.S. soil again. They certainly could find a more worthy cause to fight for than the civil rights of those who have shown no regard for the laws of the civilized world, and who have used their power to take the rights of law from others. That is not to say that the Guantanamo Bay detainees shouldn’t be treated fairly or humanely. But they shouldn’t receive any special rights simply because they are high-profile prisoners in a high-profile war. Also, human rights groups, like Human Rights Watch and Amnesty International, as well as members of the international community, criticize the Bush Administration for supposedly breaking international law by ignoring the Geneva Convention in determining the treatment of the detainees at Guantanamo Bay. The Geneva Convention, which the U.S. is a party too, requires that all prisoners of war be treated in the same manner as criminals within the organization that holds them would be. In this case, the organization is the United States Marine Corps. It also bars any abuse or torture of enemy prisoners of war.

The actual classification of a captured fighter as a “prisoner of war” under the Geneva Convention stipulates, among other things, that the soldier is part of a command of a legitimate state government. Many argue, therefore, that the U.S. treatment of the Guantanamo Bay detainees, under international law, should follow the Geneva Convention. The Geneva Convention, however, is not applicable in this situation, and may prove, like many other things in a post-9/11 world, obsolete, or at least in need of repair.

The Bush Administration’s legal policy towards the detainees at Guantanamo Bay has centered on the idea that captured al-Qaeda and Taliban members do not qualify, under the Geneva Convention itself, for prisoner of war status. This conclusion has a strong legal basis, and means that the U.S. is not bound by the Geneva Convention when handling these detainees. White House counsel, Alberto Gonzalez, clearly outlined the legal reasoning for why captured Taliban should be classified as “enemy combatants” not subject to the Geneva Convention, instead of prisoners of war. First, he correctly classified Afghanistan under the Taliban as a “failed state,” meaning one that is not controlled by any legitimate government. This conclusion was justly made because the Taliban, the supposed ruling authority, did not have complete control over the entire country, and was not recognized as legitimate by the entire Afghan population. It ruled not by consent, but with tactics of oppression. This incomplete rule, as it was, turned Afghanistan into an anarchic state where the Taliban, as well as numerous other tribal factions, were competing for power.

And secondly, Gonzalez said, the Taliban regime was not a true government, but instead more similar to a militant extremist group, like the organization they supported and protected, al-Qaeda. Therefore, any captured Taliban member should not be classified legally as prisoners of war who represent the fighting force of a legitimate government, but rather as enemy combatants. In regards to the captured al-Qaeda members, the Bush Administration has argued with clear legal justification, that because it is a non-governmental organization, in this case a worldwide terrorist network, its members are not entitled to the same protection as that afforded to soldiers commanded by a legitimate state government. Critics loudly argue that the treatment of the Guantanamo Bay prisoners violates international law because the detaining force is allegedly not adhering to the standards mandated by the Geneva Convention. But the international law they support has no jurisdiction in this case, and is therefore, irrelevant. But even still, there are more important considerations concerning this issue than international law, namely American sovereignty and principles of morality. There have been allegations of abuse and torture of the al-Qaeda and Taliban prisoners held at Guantanamo Bay, and after the very public and embarrassing prisoner-abuse scandal at the Abu Ghraib prison in Iraq, the issue of how to treat those captured by U.S. forces in the war on terrorism has been the subject of enormous debate. But one must realize the difference the abhorrent abuse and torture of prisoners which occurred at Abu Ghraib, and necessarily aggressive methods of waging war which may be used during interrogations at Guantanamo Bay.

Critics of the Bush Administration fail to make such a distinction. They claim that the U.S. Government wrongly formulated a very narrow definition of torture, which Gonzalez interpreted as being any pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death,” in order to broaden the military’s options with regards to the methods used to hold and interrogate prisoners at Guantanamo Bay. But despite the many allegations, there has been no evidence presented which allows for the conclusion that the detainees at Guantanamo Bay are victims of systematic abuse or torture. While there is no proof that abuse or torture has occurred at Guantanamo Bay, there can be no doubt that certain techniques which some consider immoral have been and continue to be used by U.S. forces in their interrogations of prisoners. These interrogations are conducted in order to extract information that may prevent future terrorist attacks on the United States and elsewhere.

It must always be remembered, however, that the U.S. Government, unlike the Human Rights Watch, Amnesty International, and others who demonize our government and fight for the rights of terrorists, is responsible for the safety of 290 million American citizens. In the war against terrorism, the Bush Administration cannot afford to do anything but use all means necessary to combat any enemy that proved itself on September 11th to be dedicated, ambitious, and brilliant, as well as extremely dangerous. And as a sovereign nation, the United States receives any and all authority it needs to do so from the U.S. Constitution.

There should be no consideration for international law that potentially conflicts with the effective protection of the United States. And while the Bush Administration has used sound legal justification in arguing that the Geneva Convention does not apply to the prisoners at Guantanamo Bay, it appears willing to make the correct decision in matters where such a conflict should occur. With that in mind, the most important question to ask when considering the methods of detention and interrogation of enemy prisoners at Guantanamo Bay is whether or not they are effective in keeping the United States safe. We cannot know whether or not these techniques have actually helped prevent terrorism against American citizens, but it would be perfectly logical to conclude that they have. And would the critics of the Bush Administration be willing to trade the civil and human rights of those who have dedicated themselves to stripping people of their dignity as men and women, to oppression, and to murder, for the security of innocent American lives? There should be only one answer to this question. America is known for her idealistic principles of liberty and democracy, and what is so great about our country is that we are a place where idealism is also reality. But American principles are often threatened by enemies, both foreign and domestic. Thus in order to protect the American way of life, sometimes methods are required which seem to run counter to the principles we stand for.

However, the protection of democracy is not always accomplished through the practice of it. And morally, the first concern of our government has to be the safety of its citizens and the protection of the principles they live by. Since September 11th, it has often been made clear that the cost of American safety and liberty is high, but there is nothing more worth protecting.