Hicks Trial a Privilege Not a Right
The case against the Guantanamo detention camp rests on myths.
BY JAMES TARANTO
The Australian, Monday, September 25, 2006
American left-liberals love to fuss about the public image of the US overseas. Their brethren down under don't seem to care how ridiculous they look, or at least that's what I made of the news last month that ACT Chief Minister Jon Stanhope nominated Terry Hicks, whose son is the lone Australian under detention in Guantanamo, to be Father of the Year. True, US liberals lionised anti-American crackpot Cindy Sheehan, but at least her son died fighting for his country.
Then again, even in the US the press are filled with denunciations of Guantanamo; and domestic foes of the war on terror aggressively promote their case. A case, as I discovered on a visit to Guantanamo Bay last month, that rests on a web of falsehood.
We constantly hear that the detainees are held in Guantanamo without due process. The left-liberal Centre for Constitutional Rights recently claimed that many of the detainees "have never been charged and will never be charged because there is no evidence justifying their detention." Hicks is one of only four detainees who have so far been charged, their trials delayed until Congress enacts a statute authorising the proceedings. But the centre's complaint is beside the point.
Although some detainees are suspected of or charged with crimes, that is not the reason they are being held here. This is not a criminal detention facility, a prison. "Prisons are about rehabilitation and punishment," Harry Harris, the camp commander, says. "What we are about is keeping enemy combatants off the battlefield ... The enemy combatants that we have here were captured on the battlefield or running from the battlefield and they were engaged in combat operations against Americans, and in many cases killed Americans. What we're trying to do at Guantanamo is simply keep them off the battlefield, because we know that many of them would go back to the fight."
This is entirely consistent with international law. The Geneva Conventions provide that enemy combatants can be held for the duration of the conflict and need not be charged with any crime. This is even true of legitimate prisoners of war, those who wear uniforms and carry arms openly. PoWs, however, are entitled to certain privileges that unlawful combatants--terrorists and guerillas--are not, such as access to musical instruments and scientific equipment.
Hicks's status as an enemy combatant has been adjudicated pursuant to Article 5 of the Geneva Conventions, and in doing so the US went beyond its obligations. International law mandates such hearings only if the detainee's status is in doubt, but in 2004 the US Supreme Court held that detainees with American citizenship were entitled to them as well. The military responded by providing Article 5 hearings for everyone.
In addition, the military established a proceeding called an Administrative Review Board, analogous to a parole hearing, that leads to the release of detainees who are judged no longer a threat to US security.
About 315 of 770 Guantanamo detainees have been released either through one of these proceedings or via informal processes that predated them and another 100-plus are about to leave when the US can find a suitable nation willing to take them. (Some of them cannot be repatriated to their home countries for fear that the governments there will torture them.) More than a dozen of the freed detainees are known to have returned to the battlefield, suggesting that the procedures are, if anything, too lenient.
In addition, the Supreme Court held in 2004 that detainees could petition the courts for wrongful imprisonment. Although new habeas corpus petitions are banned under the Detainee Treatment Act of 2005, most detainees had already filed by then. Harris says there are more than 900 habeas lawyers representing fewer than 450 detainees.
By extending habeas rights to the detainees, the court created a loophole in camp security. Guards screen and censor mail to and from the detainees but communications with their lawyers are privileged and confidential. "We don't look at the envelope, or in the envelope, at all," Harris says. He believes detainees could have abused that privilege and used it as an informal mail system by passing notes to other detainees in envelopes from lawyers. (Harris is careful to note that he does not believe lawyers are complicit in any abuse and that, because he cannot look inside the envelopes, he has no ability to confirm his suspicions.)
Perhaps the most ridiculous complaint is that justice has been too slow for Hicks and the other detainees who have been charged with war crimes. In truth, their trials are being delayed only because Osama bin Laden's bodyguard was able to avail himself of US appeals courts to challenge the legality of the proceedings.
In any case, the US is under no obligation to give any of these men a trial and not all of the detainees here are believed to have committed war crimes. America has the authority under international law--and the duty to its own citizens--to hold those who remain dangerous for the duration. It could defer war crimes trials until the war is over, as the Allies did in World War II. Hicks and his champions should be thankful that America is attempting to offer him a day in court.
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