The Guantanamo Files, Part 1: Legalization is No Solution

There’s something both tedious and chilling about skimming through some of the more than 5,000 pages of transcripts from military hearings in Guantánamo, released by the Defense Department on Friday. Although the Bush administration had initially argued that total secrecy was required in dealing with the Guantánamo detainees, it released the voluminous files in response to a lawsuit by the Associated Press, and they are now available on the Defense Department's website.

These files paint a portrait of the “worst of the worst”--as Rumsfeld famously called the detainees--that is a truly pitiful one: the majority of the detainees appear to be illiterate peasants, caught up in the combination of incompetence and corruption that marked the Afghan war. According to yesterday's New York Times article:

many of the detainees complained that “they were turned over to American forces in exchange for some kind of bounty, or that they were arrested when they refused to or could not pay bribes to the local authorities.

"The Pakistanis are making business out of this war," said a detainee from Tajikistan who was arrested in Pakistan in November 2001. "The detainees are not being captured by U.S. forces, but are being sold by the Pakistan government. They are making 2, 3, or $10,000 to sell detainees to the U.S."

The justifications for imprisoning these men were equally ludicrous. One detainee was confronted with the “evidence” that his wristwatch was of the same type used to make bombs in Afghanistan. The detainee pointed out that the Casio watch was an extremely common brand, and the United States may as well arrest “all the shops and people who own them.” Unsurprisingly, the Casio evidence turned up in the cases of a number of other detainees as well.

One exchange, summarized in the Times article, neatly illustrated the charade of the “review” offered to the prisoners:

At one review hearing last year, an Afghan referred to by the single name Muhibullah denied accusations that he was either the former Taliban governor of Shibarghan Province or had worked for the governor. The solution to his case should have been simple, Mr. Muhibullah suggested to the three American officers reviewing his case: They should contact the Shibarghan governor and ask him.

But the presiding Marine Corps colonel said it was really up to the detainee to try to contact the governor. Assuming that the annual review board denied his petition for freedom, noted the officer, whose name was censored from the document, Mr. Muhibullah would have a year to do so.

"How do I find the governor of Shibarghan or anybody?" the detainee asked.

"Write to them," the presiding officer responded. "We know that it is difficult but you need to do your best."

"I appreciate your suggestion, but it is not that easy," Mr. Muhibullah said.

To call this “due process of law” is like calling the Stalinist show trials a fair legal system. Yet, these kangaroo courts appear to perfectly satisfy Justice O’Connor’s criteria for due process in Hamdi v. Rumsfeld, which went out of its way to include an ad hoc military tribunal, admission of hearsay evidence, and a reversal of the burden of proof as examples of due process of law. These newly released documents give us a vivid image of what has been obvious from the beginning: to speak of due process in such a context is not only laughable but deeply pernicious, because it extends the cover of law and a patina of legality to a process which is purely a matter of prerogative power. What these newly released files make so awfully clear is that none of these men should have been detained in the first place. Legalizing the detentions is no solution. The only legitimate response is to disband the camp, and repatriate the detainees.