Whatever happened to the “worst of the worst”? When the military started bringing captives to Guantánamo Bay, Cuba, in January 2002, it claimed that the detainees were dedicated to killing millions of Americans, and so suicidal that they would “gnaw through the hydraulic lines” of their transport plane to bring it down. Yet in recent weeks, the military has released eighteen detainees from Guantánamo, bringing to thirty-six the total number it has permitted to check out of Camp Delta since it opened. If they were the “worst of the worst,” why have thirty-six now been allowed to go free?
Unless we are to believe that the military is intentionally setting loose suicidal killers bent on murdering us, the only conclusion one can draw is that the military’s initial assessment of a significant number of detainees was mistaken. Other reports confirm that conclusion. Military officials have admitted that there are in fact no “big fish” on Guantánamo and that many of the detainees may be there by mistake. Some were brought in for rewards by bounty-hunters. One of the men released claimed to be over 100 years old. And in recent weeks, the military has confirmed that among the detainees still held are juveniles as young as 13. The worst of the worst?
These developments only underscore the legal and moral bankruptcy of the government’s position on the Guantánamo detainees. From the outset the Bush Administration has invoked the law of war to justify their detention but has refused to comply with the most basic obligations of that law. It is true, as the Administration argues, that the law of war permits detention of “enemy combatants” for the duration of a conflict and that those who violate the laws of war are “unprivileged” combatants not entitled to prisoner-of-war status. But where there is any doubt about a detainee’s status, the Geneva Conventions require a hearing before a competent tribunal–hearings we have routinely held in prior conflicts.
The Administration claims it has determined categorically that all Taliban and Al Qaeda fighters were “unprivileged combatants” and therefore no purpose would be served by holding such hearings. But that assumes everyone held at Guantánamo was fighting for the Taliban or Al Qaeda. As the military’s recent releases suggest, some detainees may not have been “combatants” at all.
The federal courts have thus far refused even to consider the claims of those seeking to challenge the treatment of the Guantánamo detainees. On May 19 the Supreme Court declined to review one such case. Other challenges are sure to follow, but the Court’s decision in April on the rights of immigrants in the United States does not bode well for such review.
In Demore v. Kim, the Court, by a five-to-four vote, upheld a 1996 statute mandating preventive detention of certain immigrants placed in deportation proceedings for having committed crimes. The statute mandates detention even where, as in Kim’s case, the government agrees that detention is not necessary. For the first time ever outside the war setting, the Court upheld categorical preventive detention without any individualized assessment of the need for detention. And the Court reached its result by expressly invoking a double standard, claiming that in regulating immigration, “Congress regularly makes rules that would be unacceptable if applied to citizens.” If the Court takes that attitude toward permanent resident immigrants, imagine its views on “the worst of the worst.”
Colin Powell recently weighed in on the situation, writing Donald Rumsfeld to express his concern, not about the blatant injustice of the situation but about the pesky complaints he receives from many of our closest allies about our treatment of their citizens on Guantánamo. But as this Administration has shown, complaints from the rest of the world are virtually certain to fall on deaf ears. The limbo that is Guantánamo, like the war on terrorism, has no end in sight. This is perversely fitting, for Guantánamo is the perfect symbol of what the Administration wants generally in the war on terrorism–the authority to act without the constraints of law.