perfidy

I heard an interesting discussion this morning on NPR...the topic was the prisoners down in Cuba. The Supreme Court is hearing the Hamdi case soon, I think...the case will decide the question of whether the US Government is allowed to hold a US citizen without a trial or any other recourse, by declaring that person an "unlawful combatant".

Common sense tells us that the government can't do this. I don't even know why this has gotten as far as the Supreme Court. Sure, the guy was picked up on a battlefield. Yeah, there were enemies in the area. At least, that's what the government says. Our system of justice says that crimes (like this one) need to be proven by the government. We don't just throw people in jail because a prosecutor says they've done this or that. We already know what happens when you have a system of justice that works that way -- take a look at the waning days of the Soviet Empire, or what purports to be justice in China, today.

There are a couple of standard excuses that are trotted out by Bush supporters, to justify this. First is the "just trust us" line. Since when does this country "just trust" its elected representatives? At the heart of democracy is the free and unfettered flow of information. Yes, we "trust" our representatives, and if we don't like what they do, we can throw them out in the next election. Our ability to know whether or not we should toss them out depends on the flow of information. If the government is coming after citizens secretly, other citizens don't have access to the information they need to make voting decisions.

At a bare minimum, the government should be required to publish aggregate statistics on the numbers of secretly held captives. Substantial judicial oversight needs to be in place, and periodic reviews must be in place, with members from each branch of government, who must all be in agreement. Is this a lot of work? Yeah, but if we want to do the right thing, it's important.

On the status of the boys in Cuba: It all hinges on status of an individual. We can probably do a significant amount of sorting with one simple principle. Give each prisoner a chance to declare his citizenship, and then ask that government to acknowledge that the prisoner is one of their citizens. That government can then confer status to the prisoner. If the government declares that person to be a soldier in their army, then the person is a prisoner of war and must be treated in accordance with the Geneva Conventions. If they do not acknowledge that person as a soldier, then they are officially an unlawful combatant.

Once someone is in the "unlawful combatant" classification, we must then determine if they were, in fact, fighting. This appears to be one of the key problems: How do we know what a given person was doing? The Administration's attitude towards this is that we should err on the side of safety, and simply keep these people indefinitely until we are sure that it's OK to let them go. To be sure, a small number of people have been released -- their is no overt desire to hold people that don't need holding.

The question is, why should this process be secret? The only sensible reason is that there may be matters of intelligence that could be compromised. While this is a valid reason, it is applied with a very broad brush. It does not make any sense that virtually all of the Gitmo Happy Campers are in this category. Once again, even if secrecy is necessary, convene a simple tribunal with military, judicial, and executive branch members. Have congressional oversight on these tribunals, which can operate in secrecy if the case is made for it. Otherwise, they're open. Why should they be any other way?

Ultimately it's about deciding whether or not the Constitution and its principles apply universally, or whether American citizens are in some sort of special class or people. Americans don't often consider how they'd like to be treated in other countries. If an American citizen is locked up in China on bogus charges, they'd expect their government to come rushing to their aid, because it just ain't right.

Two wrongs don't make a right. We need a simple mechanism to provide oversight and effectively deal with these people, and a universal mechanism is the American way to do it.