Justice delayed, justice denied

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The Pentagon has announced plans to summarily release 141 detainees at Guantanamo, roughly a third of the 490 remaining prisoners, and to charge an additional two dozen or so.

Charges are pending against about two dozen of the remaining prisoners, the chief prosecutor said. But he left unclear why the rest face neither imminent freedom nor a day in court after as many as four years in custody.

Only 10 of the roughly 490 alleged “enemy combatants” currently detained at the facility have been charged; none has been charged with a capital offense.

That leaves the majority of the U.S. government’s prisoners from the war on terrorism in limbo and its war crimes tribunal exposed to allegations by international human rights advocates that it is illegitimate and abusive.

So let’s review the math. After four years of holding prisoners without charge, and without affording them the protections of either our legal system or the Geneva Convention, we have:

390 prisoners released without charge;
34 or so charged with various crimes;
300 or so continuing to be held without charge or any effective way to challenge their imprisonment.

Then there are the prisoners, such as the pair of Chinese Muslims I’ve written about before, that the U.S. acknowledges are innocent but continues to imprison because they face persecution if sent home.

So we hold 750 people for years so that we can eventually charge fewer than 40. That works out to a false-imprisonment rate of about 95 percent.

I understand holding soldiers until the end of hostilities. But then you identify them as POWs, give them Geneva Convention rights (even if they’re not signatories, in keeping with decades of American practice) and carefully detail which conflict you’re holding them as part of, and how that conflict will be defined as “ended”. If we hold everybody we sweep up in the “war on terror” until the end of the “war on terror”, we’re going to be holding low-level combatants for decades.

I understand imprisoning terrorists for a long, long time. But in that case we have to prove they are terrorists. Which requires charges, evidence and a civilian trial.

I understand the difficulty of trying people when much of the evidence against them is classified. But that’s why you set up special civilian courts where everyone — judge, prosecutors, defense counsel — has security clearances. You don’t use that as an excuse to set up military tribunals or simply hold people without charging them.

The Pentagon stresses how carefully every case is reviewed:

He contended that the men’s detention had been justified. Battlefield commanders in Afghanistan and Pakistan had determined when the men were arrested that they were a threat to U.S. forces in the region, he said.

“Every detainee who came to the Combatant Status Review Tribunals went though multiple reviews” before their arrival at Guantanamo, Peppler said.

But such reviews rely entirely on the sense of fairness and attitude of the reviewer. That’s not how a functional justice system works. Our justice system stresses individual rights precisely because governments do not have a good track record of protecting such rights when left to their own devices. A Pentagon reviewer will err heavily on the side of continued detention, every time, simply because it’s the safe choice and because the reviewer is less interested in being fair to the prisoner than he is in not releasing a potential terrorist. The safest way to do that is to never release anybody.

Terrorists deserve to be treated harshly, be it execution or long prison terms. But suspected terrorists deserve rights. By ignoring and willfully attempting to blur that distinction, the Gitmo limbo zone has been a legal and moral disaster since its creation. And the latest prisoner release, while undoubtedly a relief to the prisoners involved, is simply another example of why we should not tolerate its continued existence.

(crossposted at Midtopia)

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