Yesterday, the Supreme Court rebuked the Administration once again for its unlawful detention policy in Guantanamo, ruling in Hamdan v. Rumsfeld that the military commissions created by the president are illegal. This follows on the decision two years ago in Rasul v. Bush when the Court upheld the right to judicial review for prisoners at the base. Recently President Bush has said that the government was awaiting the ruling in Hamdan before deciding whether to end its policy of indefinite internments. That day has now come, and it is time for President Bush to keep his promise.
This is a welcome development. Defense Secretary Donald Rumsfeld once described the prisoners as "among the most dangerous, best trained, vicious killers on the face of the earth." General Richard Myers said they were "very dangerous people who would gnaw hydraulic lines in the back of a C-17 to bring it down." Vice President Cheney said they were "the worst of a very bad lot." In Hamdan, the Supreme Court ruled that tough talk is no substitute for the rule of law.
From the beginning, senior military officials knew the reality at Guantánamo was no match for the rhetoric. In the spring of 2002, the former deputy camp commander lamented the number of innocent prisoners filling his hastily constructed prison. General Michael Dunlavey, who was in charge of interrogations, flew to Afghanistan to complain that too many "Mickey Mouse" prisoners were being sent to the base.
The Administration once boasted of an elaborate screening process that separated wheat from chaff in the field. But despite this process, dozens of farmers, cab drivers, cobblers, and laborers were shipped to the prison, even though intelligence officers in Afghanistan had called for their release. An Arab prisoner was among the first to arrive. He had a severe head wound that left him virtually unable to communicate. Interrogators in Afghanistan had repeatedly recommended against his transfer to Cuba. At Guantánamo, he was nicknamed "half-head Bob." Another prisoner ate his feces and drank his urine. Psychiatrists concluded he was insane, and interrogators called him "Wild Bill."
In October 2002, the military quietly released Faiz Muhammed, who said he was 105. He babbled like a child and stumbled over the simplest questions. Interrogators called him, "Al-Qaeda Claus." A second released prisoner walked with a cane and claimed to be 90. General Dunlavey later complained that some prisoners were "older than dirt."
But others were quite young. One of the prisoners who recently committed suicide was 17 when he came to the prison. According to the Pentagon, the youngest prisoners at the base were ten, twelve, and thirteen when they arrived. One reporter recently told me that, by his count, there are 25 prisoners still at the base who were juveniles when they arrived; all have come of age in prison.
Mistakes were inevitable. According to the Pentagon, only 5% of the prisoners at the base were captured by the U.S. military. The rest were delivered to the U.S. by the Northern Alliance, Pakistani intelligence officials, or Afghan warlords at a time when the U.S. was offering rich bounties - $5,000 for a Taliban prisoner, $20,000 for a member of Al-Qaeda. The program produced predictable results: a steady flow of miserable prisoners delivered by villagers with their hands outstretched.
But even when we managed to capture a "member" of the Taliban, that was no guarantee the prisoner was hostile to the U.S. The Taliban often resorted to forced conscriptions - kidnappings - to fill out its ranks. A number of prisoners at Guantánamo thought the Taliban's fall would mean their freedom, only to find themselves shipped to Cuba.
The Administration acknowledges these mistakes but says the screening process is now more "robust." But nearly all the prisoners at the base have been there since 2002 and 2003. In fact, no new prisoners have arrived at Guantánamo since September 2004. Meanwhile, the prison at Bagram Air Base in Afghanistan has grown from 100 prisoners to a high of nearly 600. Bagram has become the new Guantánamo, and the prisoners in Cuba have been left to languish. As of last year, three-quarters were no longer being interrogated, and seventy percent were slated for release. Yet they remain imprisoned in severe conditions, unprotected by the Geneva Conditions.
Despair weighs down on them like the time on their hands. In 2003 alone - the last year for which the Pentagon has reported results - the military counted 350 "self-harm" incidents, including 120 "hanging gestures." An entire cellblock is now devoted to prisoners who are too mentally ill to be housed with the other prisoners, and the military has opened a new psychiatric unit, with sixteen inpatient cells, at a cost of $2.65 million.
The detention policy that produced the prison at Guantánamo is a disaster. But the danger to the United States lies not simply with the fate of the men held there. Guantánamo has become a symbol, a word that transcends its own literal importance as a prison. Many factors account for the diffuse hostility that buffets us from all corners of the globe, but the prison at Guantánamo is one of the very few capable of concentrating this rage, giving it a pure and dangerous intensity. Today, thousands of Muslims around the world find themselves balanced on the knife edge between moderation and extremism. As Guantánamo endures, their anger grows. And it is for them, and for the violence that anger will certainly spawn, that we must be most concerned. In Hamdan, the Supreme Court took an important step to limit the damage by affirming once again that, at least so long as we would call ourselves a constitutional democracy, there is no prison beyond the law.