Detentions of alleged enemy combatants at Guantanamo Bay (Gitmo) and extraordinary renditions smack more of Franz Kafka's "The Trial" than of Alexander Solzhenitsyn's "Gulag Archipelago," although the question is not free from doubt. But they are not jokes.
The abuses and miscarriages of justice occasioned by the Bush administration's visceral contempt for the law curtail counterterrorism cooperation from European allies like Great Britain. They make Americans less safe. Symptomatic is the recent case styled Haji Bismullah v. Gates (July 20, 2007) in the District of Columbia Circuit U.S. Court of Appeals.
Haji Bismullah was captured in Afghanistan in 2003. Huzaifa Parhat and six other Gitmo detainees are ethnic Uighurs captured in Pakistan in December 2001. A Combatant Status Review Tribunal (CSRT) determined all eight were "enemy combatants" subject to indefinite detentions until the war against international terrorism ends — in other words, for life.
The CSRT procedures are suboptimal, at least if justice is the goal. The military both appoints CSRT members, defines who is an enemy combatant and defends its enemy combatants designations before its own appointees, a combination of functions the Founding Fathers assailed as the very definition of tyranny.
Detainees are denied access to classified information. They may not hire outside counsel, but must rely on a personal representative, who is also a military officer. The definition of "enemy combatant" is elusive: "[A]n individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." Neither Taliban nor al Qaeda keeps membership rosters. Nor do they maintain a list of supporters. What does it mean to be a member or supporter? Pay dues? Carry a picture of Osama bin Laden or Mullah Omar? Compose a song celebrating jihad? Hope that Islam will prevail in Samuel Huntingdon's "Battle of Civilizations?"
Any Gitmo detainee who is a member or who has provided material assistance to Taliban or al Qaeda can be criminally prosecuted in federal district courts with procedural safeguards against error like Zacarias Moussaoui, John Walker Lindh or Jose Padilla. The Classified Information Procedures Act of 1980 enables prosecutions without exposing intelligence sources or methods. Why is there a need to define "enemy combatant" so broadly?
The CSRT is to "determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an enemy combatant." The government enjoys a rebuttable presumption that its evidence is genuine and accurate. A detainee may seek exculpatory only if it is "reasonably available."
According to the Bush administration, the CSRT's multiple insults to due process are justified by the harrowing danger to Americans presented by Gitmo detainees after the terror attacks of September 11, 2001. That assertion seems transparently counterfactual.
Take Gitmo's Uighur detainees, including the seven challenging their designations in Bismullah. Has anyone even heard a rumor that a Uighur has killed an American civilian or soldier? Their overriding ambition is to win independence from the oppressive Chinese Communist government.
The U.S. State Department's 2006 Human Rights Report sharply condemned China's maltreatment of Uighurs: "The government continued to use counterterrorism to justify religious repression of Uighur Muslims. ... The government's war on terror continued to be used as a pretext for cracking down harshly on Uighurs expressing peaceful political dissent and on independent Muslim religious leaders. In December 2003 the [Chinese] government published an 'East Turkestan Terrorist List,' which labeled organizations such as the World Uighur Youth Congress and the East Turkestan Information Center as terrorist entities."
The Bismullah litigation highlights the military conception that the CSRT mission is to see that alleged enemy combatants remain detained, not to see that justice is done. The defense secretary argued that in determining whether the preponderance of the evidence standard had been satisfied, the court of appeals should examine the record before the CSRT, but shut its eyes to contradictory evidence in the hands of the government that had been wrongfully withheld. Judge Douglas Ginsburg retorted: "[T]he court cannot... consider whether a preponderance of the evidence supports the Tribunal's status determination without seeing all of the evidence, any more than one can tell whether a fraction is more or less than one by looking only at the numerator and not at the denominator."
The American people are paying a stiff price for Bush administration lawlessness in combating international terrorism. Among other things, the British have diminished their cooperation.
Last week, the Intelligence and Security Committee of the British Parliament issued a report sharply critical of Mr. Bush's practice of kidnapping, secretly imprisoning, and torturing terrorist suspects. The report elaborated that after Abu Ghraib, the British government was "fully aware of the risk of mistreatment associated with any operations that may result in U.S. custody of detainees." Accordingly, Britain withdrew from some planned covert operations with the Central Intelligence Agency, including a major mission in early 2005, because assurances against inhumane treatment and rendition were not forthcoming.
The Bush administration could not care less. A former CIA official boasted to House Foreign Affairs Committee on April 17, 2007, that the United States could win the war against international terrorism alone. As for Europe, the erstwhile CIA wizard sneered: "Europe is a declining continent. Its demographics are going over the edge. There are two popular and permitted bigotries in Europe, anti-Americanism and anti-Roman Catholicism."
Bruce Fein is a constitutional lawyer with Bruce Fein & Associates and chairman of the American Freedom Agenda, an organization devoted to restoring checks and balances and protections against government abuses.