Perhaps GITMO Can Finally Be Closed

Perhaps the prison camp at Guantanamo Bay [GITMO] can finally be closed. Perhaps we can begin to heal that festering sore on the conscience of a nation founded upon the principle that a megalomaniacal despot cannot arbitrarily imprison people. The US Constitution, written centuries ago, incorporated what seemed to most Americans (until about five years ago) to be a very simple and basic principle. To justify imprisoning someone, the government must put forward at least some evidence that (1) the person is actually the person they intended to imprison, and (2) that there are at least some credible grounds for detaining the person. A dangerous person can, of course, be held in custody before and until trial. However, there must be some charges asserted and it is reasonable to allow the detainee to test the credibility of those charges to ascertain whether there is at least probable cause to believe that they can be proven. Even reciting these very fundamental concepts seems a bit simplistic and pedantic. However, for the past five years, the Bush Administration has suspended these fundamental Constitutional principles. That course of action has undercut the moral authority with which the United States had been able to negotiate with other countries and leaders about basic human rights.

The Bush Administration argues that because the detainees are not US citizens and are being held on soil that is not US [although there is no dispute that the location is under US control], the actions are not subject to Constitutional protections. The argument has been purportedly bolstered by doubtful claims that “National Security” may be put at risk if these detainees were allowed to contest their imprisonment. Indeed the Bush Administration argues that even allowing the detainees the right to legal counsel or to notify their families that they are alive would threaten National Security.

A similar argument was tried in an attempt to nullify the restrictions on torture incorporated in the Geneva Conventions. But the whole idea of basing a policy or a doctrine upon characterizing people as less than human beings is a slippery slope that leads to destruction of principled government and morality. Slavery and torture are the end products of such faulty reasoning. The rule of law assumes that some people are capable of doing very bad things. Their alleged actions do not negate their humanity, and they can be subjected to lengthy and severe punishment if proven guilty of serious crimes, including murder and terrorism.

The Supreme Court of the United States of America recently ruled that the rule of Habeas Corpus, the right of the imprisoned to test the basis for their detention, is still viable. The Court ruled that a President does not have the discretion of the power to supersede the US Constitution. Prior rulings by the Supreme Court were half measures that lacked the courage and definitive force of this last one. Holding that federal statutes gave prisoners a right to a fair trial only led to a GOP controlled Congress amending those statutes. However, the latest decision based its authority on the Constitution itself. There is a legal principle that a creation of statute or law [the Constitution being the highest governing national law] cannot rise above the authority from which it derives its power and existence. Simply put, the Presidency is a constitutional office. Therefore the President has no power to override the limits of the US Constitution.

However, that Constitutional limitation on Presidential power is precisely what Bush policy disregards. Bush and Cheney assert that in times of “emergency” the President has the ability to suspend the constitution. This argument is put forward despite the fact that the “emergency” is a manufactured crisis based upon an unnecessary and probably illegal invasion of Iraq. Rejecting the Bush contention, Justice Kennedy declared: “The laws and Constitution are designed to survive, and remain in force, in extraordinary times.”

Now that the Supreme Court has ruled that the detainees have the basic right to challenge the reason for their imprisonment, the US government has the ironic opportunity to restore some of its integrity and reputation. By forcing the government to put forth evidence that the personas being jailed for years really warrant incarceration, the Supreme Court has compelled the Bush administration to establish some measure of integrity. The acknowledgment and acceptance of international social and legal conventions of humane treatment of prisoners does no weaken a nation or threaten national security. To the contrary, it establishes a foundation of moral and legal authority that supports the imposition of justice and punishment upon people who violate legal and societal norms. No one would attempt to justify a vicious terrorist act by a GITMO prisoner. However, punishing the person without ever advancing charges based upon probable cause and offering proof that the person is guilty is inhumane and un-American. Perhaps we can now put a stop to this odious practice by the Bush Administration and allow the rule of law and principles of justice work as they were intended.