The Next Hurrah: The Prisoners Dilemma

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February 18, 2006

The Prisoners Dilemma

By Mimikatz

Amid the furor over Dick Cheney’s hunting accident, two reports and an investigative series of articles about our continued detention of prisoners at Guantanamo Bay have drawn little notice. But as both Kevin Drum and Dahlia Lithwick note, the questions that these reports raise are serious. We hold nearly 500 prisoners at Guantanamo, most of whom appear to be victims of bad luck, mistaken identity and false accusations. Yet, as they enter their fourth year of detention, their future seems murkier than ever.

First to appear was a series of articles in the National Journal by Corine Hegland. Next came a study by Professor Mark Denbeaux of Seton Hall [pdf] and attorney Joshua Denbeaux, counsel for two Guantanamo detainees. Then came the report from the UN Commission on Human Rights. In dismissing the UN Report as a “rehash”, White House spokesman Scott McClellan said, “We know that these are dangerous terrorists that are being kept at Guantanamo Bay. They are trained to provide false information.” Donald Rumsfeld has called them "the worst of the worst" and characterized them eight months ago as “people, all of whom were captured on a battlefield. They’re terrorists, trainers, bomb makers, recruiters, financiers, [Osama’s] bodyguards, would-be suicide bombers, probably the 20^th 9/11 hijacker.”

But like so much from this Administration, Rumsfeld’s statement was untrue, and he most certainly knew that. Instead, the National Journal examination of the cases of 132 prisoners who have asked for court assistance, and the Denbeaux’s examination of the evidence against all of the detainees produced by the US Government for the Combatant Status Review Tribunals shows a very different picture. The Seton Hall study shows that only 5 percent were captured by US forces, 86% were captured by the Northern Alliance or Pakistani at a time when the US was offering large bounties for capture of suspected al Qaeda fighters (some of which they reproduce and translate); the majority were captured outside Afghanistan; the majority have not been determined to have committed hostile acts against the United States; only 8 percent are deemed to have been al Qaeda fighters while 40 percent have no established affiliation with al Qaeda; and 60 percent are accused of merely being “associated with” terrorists, some on rather flimsy evidence or evidence known to be fabricated. Indeed, the National Journal reported that by the fall of 2002 it was clear that at most 10 percent were “high value targets,” and most of those are no longer at Guantanamo. The rest, after four years of torture or at best extremely stressful conditions of confinement and interrogation, have begun informing against each other to improve their conditions, further tainting the evidence.

If they were innocent when they came to Guantanamo, have we so mistreated them that they are now too dangerous to release? How would we know? The Bush Administration, having characterized these men as terrorists and gotten Congress limit their access to the courts, is not likely to release them. The notion that our government can simply fling people in a dungeon, label them as “enemy combatants” and keep them until they die, is repugnant to our constitutional system. Moreover, it sets a very dangerous precedent of unbridled executive authority that could be turned on our own population. But what can be done? After Willie Horton, will any Democratic President risk being, as the National Journal put it, the one “to release the man who might fly into the next skyscraper?”

February 18, 2006 at 15:58 in Bush Administration, Contributor--Mimikatz, Law | Permalink

Comments

Kevin Drum argues for giving the prisoners hearings. But most of them have had Combatant Status Reviews, and, as the Seton Hall report shows, the evidence against most of them is not really substantial. Further, the Natuional Journal story on Detainee 032, the military simply does not believe detainees' protestations of innocence, and because of the circumstances of their capture, they have precious little to use in their defense. If they were given a court trial with real due process, the cases would be dismissed as insubstantial, and the government risks having its treatment of the detainees exposed.

But can we really just keep them in a sort of Islamic "Village" like the '60s TV show? At the very least we should stop the awful music and radically improve the conditions of confinement. Then Congress should try to ensure that this never, ever happens again, because if all the world is a battlefield in the War on Terror, no one is ever really safe.

Posted by: Mimikatz | February 18, 2006 at 17:02

Who is No. 1? Is Bush or Cheney making these decisions? Whoever it is, they are wrongheaded ones that will hurt us far more than help us.

Posted by: DemFromCT | February 18, 2006 at 17:32

Who's #1? I'd have to guess the Rumsfeld-Cheney cabal, feeding into Bush's macho pretensions. And as usual, no one thought through the longer term implications of the "policy."

Posted by: Mimikatz | February 18, 2006 at 17:40

Mimi, thank you so much for posting this. The information it reveals about my country sickens me. The WH is using my tax dollars to fund something so fundamentally evil that it contradicts every principle upon which this country is built. Everyone of these prisonsers has a family, which probably has no idea whether the prisoner is alive or dead.

Posted by: John Casper | February 18, 2006 at 19:49

DemfromCT, I was really impressed by the gracious way you accepted Kalidescope's, "I don't mean to be harsh..." I didn't agree with Kalidescope.
TNH for me is very accessible. I can see the new post right away and decide if I want to read it. I can think of a lot of excellent bloggers imo who aren't in emptywheel's league, much less her equal. It is the combination of the consistent, extremely high quality of her posts, she's always saying something new, and she does it so damn often. It would be a shame imo if any TNH contributor thought they had to wait until they had something approaching emptywheel's quality before posting. When I first started coming over here, it was only for emptywheel. Then I saw a post by DHinMI about something I knew something about. From then I trusted DHinMI. RonK had that very important first post about Abarmoff donations that was critical in keeping the blogs from overstating or oversimplifying the evidence. I have been fortunate to read a lot of very good posts from all the other contributors here at TNH and you. I have always been very impressed with MimiKatz's comments here and at FDL. The velocity of TNH posts imo brings people back to TNH,whether emptywheel has a new one up or not.

Posted by: John Casper | February 18, 2006 at 20:32

These detainess will be held until they die. To release them would mean that the horrors of their detention would become known. And as was pointed out in the post, none of the Dems if elected would release them too. As it is the Dems cave in on everything from the illegal spying on Americans to the Patriot Act that provides no protection of constitutional individual liberties because they are too afraid of being labeled "weak on terrorism". Reminds of the 80s with the "weak on crime" political campaigns.

Until principled candidates unafraid to stand up for the Constitution and the rights of Americans win in the Democratic party primaries, these detainees have no hope that will receive due process and their cases will be adjudicated by the legal system.

The down side to such extra judicial detainment with torture is when Americans get kidnapped or captured in distant lands they can expect similar treatment. The rule of law has been tossed out the window and it will be difficult to put that genie back in the bottle.

Posted by: zanzibar | February 18, 2006 at 20:42

And let's not forget the prisoners who even the Pentagon admitted last year have no connection to terrorism--yet it's still holding them at Gitmo because it doesn't know where to release them. Perfect symbol of what is wrong with Gitmo.

Fwiw, my own thoughts about these reports is here.

Posted by: smintheus | February 18, 2006 at 21:43

Terrific, horrific post -- thank you for your work, mimikatz. I can only echo the comments here; what a nightmare this is.

(BTW, just posted my own response on the open thread, but I also echo John Casper's comment to DemFromCT, both on Dem's graciousness and on the quality and value of the unsurpassed TNH.)

Posted by: rj | February 18, 2006 at 22:16

MK the court cases are still in the jurisdictional dispute phase. If any of the cases reach endgame for DoJ, SG, and the administration loses; or even if the one SCOTUS case that must face only eight justices settles in a tied opinion, there will be some interesting SCOTUS opinions written...though, who knows in what timeframe, even if the executive loses that one case. The "packets" of cases still undergoing review in the DC circuit, where SG is trying to apply retroactively the new law which is tantamount to 'congressionally sponsored court stripping' still have some chance of resulting in more checks and balances, as well, though that would occur against the wishes of amici Graham and Kyl.
My sense is because the guerrilla warfare, or terrorism, is extra-national, the government response here so far has been equally as extra-legal. Your concerns help add humanitarian balance, and are reflective of much widely held sentiment globally.
Domestically I am hoping the numerous efforts to bring more scrutiny into the diverse activities in which the administration has engaged to support its total effort in this foggy kind of strife, will result in the judiciary's taking more affirmative steps incrementally to oversee some of these executive policies, and a post elections 2006 congress might have more success in adding to an opening of processes transforming them into modalities more congruent with our form of government. Surely, the privacy matters on which the AG testified last week added fuel to the heat building to forge new ways of reopening governmental processes here to our customarily more respectable way of comporting ourselves on the world stage.

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