There are some common themes and arguments that those who have written about this topic tend to put forth. These include, and may not be limited to:
- Those who are being detained in Guantanamo Bay are the worst of the worst and pure evil, so you cannot charge them as if they were citizens of the United States.
- Closing the base at Guantanamo Bay and trying the detainees on American soil will invite terrorist attacks on the United States.
- The trials that have been operating under the military commission system are the proper place for "enemy combatants" to be tried.
I should start off by saying that some of the detainees at Guantanamo Bay have been held for over seven years without a single charge being brought against them. At the same time the Bush Administration, and many who offer their support for this facility, continue to put forth the argument that those detained are the worst of the worst and guilty of wanting to destroy America. How do we know this? Because the former Administration has told us so! So in the framing of this discussion and to keep with one of the cornerstones of our system of justice, we must first acknowledge that those accused of crimes, even those as heinous as terrorism, are innocent until proven guilty.
This leads me into the first point that I have listed above. Those who continue to advance the argument that those captured are an exception to "normal" criminals and therefore should not be tried as such. I am not advancing the argument that all of those who are being held at Guantanamo Bay are innocent, in fact there are probably some very dangerous people who are currently being detained. In the same breath, these detainees are human beings. Human beings who have made choices, aligned themselves with various ideologies, and hold strong beliefs (right or wrong) about the way the world should operate. If the choices they have made and the actions that they have taken are illegal, then they should be charged with a crime and have the opportunity for a fair trial just like any other person accused of wrong-doing.
In addition to upholding the basic tenets of justice that the United States was founded upon, the Supreme Court issued a ruling in June, 2008 in which the writ of habeus corpus was restored and it was ruled that detainees had a right to challenge their detention in U.S. courts. So contrary to some arguments, yes, detainees do have the right to challenge their detention in U.S. courts.
Another popular argument of late is that trying the detainees from Guantanamo, on U.S. soil, will make the United States less safe and invite terrorist attacks on the country. This argument has been put forth by members of Congress, columnists, and bloggers alike. Some columnists, like David Stokes, have even suggested that detainees have been treated so well at Guantanamo Bay, that they would be more likely to be abused in the U.S. prison system. From his most recent piece:
People who have spent time at GITMO tell me that prisoners have been treated better there than they are at prisons in America. In fact, it is commonplace for American personnel to be the recipients of abuse meted out by the Guantánamo detainees.
Surely claiming that American captors are the "recipients of abuse" at the hands of the captive is an interesting argument, but it is Glenn Greenwald who does a very good job pointing out in a recent piece that the United States has tried, convicted, and imprisoned terrorists for years without incident. Greenwald sums it up nicely:
If it were really the goal of Terrorists to attack American prisons where their members are incarcerated and if they were actually capable of doing that, they already have a long list of "targets" and have had such a list for two decades. If U.S. civilian courts were inadequate forums for obtaining convictions of Terrorism suspects, then the above-listed individuals would not be imprisoned -- most of them for life -- while the Guantanamo military commission system still has nothing to show for it other than a series of humiliating setbacks for the Government.
Still after these "humiliating setbacks" with the military commission system, as Greenwald calls them, there are many who continue to argue that this is the system in which the detainees should be tried. As I continue to hear this argument, I am reminded of Lt. Col. Darrell Vandeveld, a former prosecutor at Guantanamo Bay that resigned in mid-September due to his objections to the military commission system. In a piece from October at Salon.com, Vandeveld says that he was "truly deceived" by the commission system. From the piece:
His deep ethical qualms hinged foremost on the fact that potentially critical evidence had been withheld from the defense by the government.
In addition to the resignation of prosecutors from Guantanamo Bay over the military commission system, the very idea that evidence obtained using coerced interrogation is able to be used against those charged underlines what a mockery of justice these commissions are. Suppression of evidence from the defense of those accused of serious crimes combined with the ability to admit evidence obtained through coercive interrogation are two very positive reasons why these trials have been halted and why this system has been placed under review by the Obama Administration.
Standing up for the rule of law and a system of justice that this country has prided itself in since its founding is not "coming to the defense of terrorists" or "wanting to put Americans at greater risk", as some have claimed of those who praise Obama's decision. We are talking about adhering to the basic principles of justice that have set this country apart from dictators in the past. Indefinite detention without charge and the implementation of torture by the leaders of a government is the mark of dictatorships and not a society that prides itself on justice through the rule of law. A return to these fundamental beliefs and practices is necessary for the United States to reassert itself as a country that not only treats its captives with respect, but has a strong judicial process which offers the accused their basic rights.