The United States is behaving in a reprehensible way in its treatment of people it has captured in Afghanistan. It has shipped them – sedated and hooded – half way around the world to its military base in Guantanamo Bay, Cuba. (The US holds the base under a 1903 lease in perpetuity and kept hold of it after Fidel Castro and the communists came to power.)
US authorities have got themselves into a legal and moral twist over the question. The question must be asked: one what basis are these people being held? Are they suspects in a crime committed in the United States? Are they prisoners of war? Or are they something else?
It appears the US would like the last option: something else. Some have called them “”battlefield detainees”. US Defence Secretary Donald Rumsfeld called them “”unlawful combatants”. It seems these words are aimed at defining the detainees out of the classification prisoner of war or crime suspect. This is because if they are prisoners of war the US has responsibilities under the 1949 Geneva Conventions. These include access by the Red Cross, respect for religious practice and some minimal conditions under which they are kept. Apparently, these are not being complied with. Moreover, if they are prisoners of war they should be released at the end of hostilities. Those hostilities are likely to end fairly soon, because the US does not want a protracted military presence in Afghanistan. But the US “”war on terrorism” will go much longer and the US will want to keep these people for the duration.
If, on the other hand, these people are crime suspects, US law requires that they have access to legal representation and that they be charged with an offence, or released. It is significant they have been taken to the US base in Cuba – which is sovereign Cuban territory. This might help US authorities circumvent the detainees’ legal rights.
The US is right to pursue the criminals responsible for the September 11 attacks on the World Trade Center in New York and the Pentagon. And it was right to go after those who masterminded the terrorist attacks. But as it does so, it must remember that it is not only defending the United States and its people in an all-costs fight for survival. It is also fighting for liberty, freedom and democracy, so, in the words of Abraham Lincoln, that government of the people, by the people, for the people, shall not perish from the earth. It means it must also fight for the rule of law.
If the United States, in the name of fighting terror, uses the implements of terror itself, it will lose the fight. If it uses the implements of imprisonment without trial, suspension of the presumption of innocence indefinite detention, hoods, drugging, shackling and the like, it will have abrogated the rule of law and replaced it with the rule of arbitrary force.
Yes, the crimes of September 11 were terrible. Yes, the Taliban regime in Afghanistan harboured the mastermind, Osama bin Laden. But the critical part of the rule of law is that it does not allow the horror and revulsion at the event to cloud the dispassionate assessment of whether a particular person is guilty of it. When the rule of law applies, the presumption of innocence applies precisely because the terror of punishing the innocent.
The US should redefine these people and give them access to the Red Cross or US court processes. Surely, it has learnt from the Vietnam War error of destroying a village in order to save it.