Many months ago, early in 2004, I heard an interview conducted with Donald Rumsfeld at a university somewhere; it was aired on NPR. Towards the end of the interview, the interviewer asked Mr. Rumsfeld to comment on recent criticism of the administration regarding the Guantanamo detention camp. The question was not specifically about indefinite detainment, but Rumsfeld nevertheless spoke for a few minutes about the idea of detaining people indefinitely.
I don’t have a transcript or other record of the interview, but my recollection of his response was that he said something along the lines of “There are a few detainees at Guantanamo that we may choose to release into the criminal justice system for trial, largely because we have enough evidence to try them, and we don’t believe they are of any particular intelligence value to us. However, we have no intention whatsoever of letting go of the majority of the detainees, either by releasing them entirely or turning them over to the criminal court system. These are people who have plotted against the United States and that we picked up on battlefields. If we let them go, they will just take up arms against us again. So we intend to hang on to them until we’re satisfied that they pose no further threat” (not an actual quote).
This was as alarming to me at the time as it is now. Back in early 2004, I had never heard a spokesperson of the administration say so openly that they didn’t believe that people detained by the military should have access to any type of due process whatsoever, and that it was fine for the administration to detain them, at its sole discretion, for as long as it saw fit, unchecked in any way.
Over time, the administration has become more and more forthcoming about its philosophy in this matter, so that now it is quite clear that the executive believes that it is just, legal and appropriate for it to detain people indefinitely with no due process of any kind.
In this NY Times article, the administration explains that fighters captured during recent raids in Iraq are not covered by the Geneva Convention, and “could be transferred out of the country for indefinite detention elsewhere”.
The article goes on to say that
The administration has asserted an authority to detain such prisoners indefinitely, as unlawful combatants, but officials have acknowledged that they cannot say how or when the war on terrorism might be deemed to have reached an end.
A senior American official said in an interview this week that the vast majority of the 550 prisoners now held at the American detention center at Guantánamo no longer had any intelligence value and were no longer being regularly interrogated. Still, the official said the Defense Department planned to hold hundreds of them indefinitely, without trial, out of concern that they continue to pose a threat to the United States and cannot safely be sent to their home countries.
“You’re basically keeping them off the battlefield, and unfortunately in the war on terrorism, the battlefield is everywhere,” a senior administration official said.
The Washington Post reports in this article that:
Administration officials are preparing long-range plans for indefinitely imprisoning suspected terrorists whom they do not want to set free or turn over to courts in the United States or other countries, according to intelligence, defense and diplomatic officials.
The Pentagon and the CIA have asked the White House to decide on a more permanent approach for potentially lifetime detentions, including for hundreds of people now in military and CIA custody whom the government does not have enough evidence to charge in courts.
[..]
The new prison, dubbed Camp 6, would allow inmates more comfort and freedom than they have now, and would be designed for prisoners the government believes have no more intelligence to share, the officials said. It would be modeled on a U.S. prison and would allow socializing among inmates.
This blew my mind when I read it. Just to recap, the administration is asking Congress for money to imprison people that the military has captured, potentially forever, without charges of any kind ever being brought against them. These are people regarding whom the government will freely admit:
- There exists insufficient evidence to convict of any serious criminal charge in the court system of any one of a number of participating countries, and
- Who are believed to not be in posession of any further intelligence that may be valuable to the United States.
This is, to my mind, so remarkable a position to take openly in a western democracy that I’m nearly at a loss for words. Presumably we can all accept the premise that there are a variety of difficult-to-classify people that mean the United States harm and that it is legitimate to detain and interrogate these people, within the accepted limits of international law. But it is a huge leap to decide that a single branch of the United States government has sole and complete authority to imprison whomever it seems fit forever, with the detainees having no further recourse available to them.
If on no other grounds than the fact that the military may make mistakes, and detain innocent civilians, ought there not be a dispassionate system of review to determine who remains incarcerated?