First things first: most of the detainees at Guantanamo have no link to terrorism. We know from the military's own records that only 1 in 20 were captured by U.S. forces; the rest were captured by third parties and frequently sold to us in exchange for bounties paid indiscriminately to villagers and warlords during the chaos of the Afghan war. In interview after interview, CIA and military sources have told reporters that the vast majority of detainees "don't have anything to do with" terrorism, "didn't belong there," "weren't fighting." Guantanamo interrogator Erik Saar told 60 Minutes that "at best, I would say there were a few dozen" of the hundreds of detainees who had any connection with terrorism. (Our organization, the Center for Constitutional Rights, has a report out, Faces of Guantanamo, with individual stories.)
The prospect of intervention by the federal courts has been the slender thread on which the hopes for justice of those wrongly detained at Guantanamo hang. But both versions of the Military Commissions Act of 2006 currently under consideration by the Senate contain provisions that will retroactively strip American courts of jurisdiction over the habeas petitions of the more than 400 men currently imprisoned at Guantánamo Bay, or anyone brought there in the future. A U.S. citizen arrested abroad whom the military thinks is an "enemy combatant" can be detained indefinitely. Non-U.S. citizens picked up anywhere (even inside the U.S.) can likewise be held forever so long as they are held outside the U.S., period--even if they aren't "enemy combatants." The government will be able to disappear green card holders off the streets of Detroit or New York City without any cause.
The bills would thus perpetuate a system already rife with error, a system that has--predictably--frequently imprisoned the innocent. As Jon Hafetz at NYU Law's Brennan Center put it, "[s]tripping the federal courts of jurisdiction [will allow] lifelong detention for many individuals who are innocent and just need a hearing to prove it." Major General Jay Hood, commander at Guantanamo, admitted to the Wall Street Journal that "[s]ometimes we just didn't get the right folks," but innocents remain at the base because "[n]obody wants to be the one to sign the release papers. ... there's no muscle in the system."
The federal courts are supposed to be that muscle. Without the intervention of the federal courts allowing attorneys access to the base, we might never have found out about the abuse that has taken place at Guantanamo. By eliminating the power of the federal courts to hear pending cases, the new bills would not just allow wrongful detentions to continue forever; they would also effectively render the McCain Amendment prohibiting cruel, inhuman or degrading treatment unenforceable, and prevent any accountability for the torture or abuse of people in our custody.
The military commissions created by the bills will try only those accused of violations of the laws of war, not the hundreds sold to American forces by bounty hunters, swept up in the fog of war, or in the wrong place at the wrong time. As a group of retired top military commanders put it, "[t]he effect would be to give greater protection to [9/11 mastermind] Khalid Sheikh Mohammed than to the vast majority of [the] detainees," men "who have never been charged and will most likely never be charged."
As much attention as Guantanamo receives here, it is an even greater human rights scandal in Europe, and its impact in the Muslim world is inestimable. By creating a safe haven for unchecked wrongful detention and abuse, it promotes hatred of the United States and inspires repressive regimes overseas, which in turn foster violent, extremist opposition. And by helping cover up the fact that the administration has detained so few real terrorists, it has reduced political pressure on the executive and the intelligence and law enforcement agencies from the voting public. All of this makes us less safe.
New wiretapping legislation is headed to the Senate floor this week as well. We've analyzed the bills proposed by Senators Specter and DeWine previously in great detail, here, here, here, and here. The bottom line is that these bills won't make us safer. The standard warrant process works, even in crises and under time pressure--we used FISA warrants repeatedly in the week before the recent London arrests--and, by focusing law enforcement's efforts on threats that are real, results in more efficient law enforcement, as the New York Times and Washington Post proved when they showed how ineffective and indeed counterproductive the NSA Program has been. The legal shortcuts the administration has used, by removing oversight, ended up weakening law enforcement's efforts against terrorism by diminishing accountability. The two pending bills promise, in short, to make us both less safe and less free. This bill, sponsored by Senators Specter and Feinstein, is a much better alternative that would not undermine the fundamental separation of powers between the courts and the executive.
Call these target senators up and let them know you want these bills stopped. Remember, for every one of you who picks up the phone and takes the time to express your opinion, the Senator's office will assume there were 100 other folks out there who felt just as strongly but didn't make the call. So you'll be leveraging your efforts. Your short call can be as simple as telling your Senator to vote no on the Guantanamo and wiretapping bills. You can also encourage them to support better alternatives--the Feinstein bill on wiretapping, and a Specter-Levin amendment to the Guantanamo bill that would preserve the right to challenge detentions in court. Some more tips are on our website, and you can send a fax to your reps here. The important thing is to call and be counted. Your calls will make a huge difference.
Kent Conrad (D-ND) (202) 224-2043
Joe Lieberman (D-CT) (202) 224-4041
Ben Nelson (D-NE) (202) 224-6551
James Jeffords (I-VT) (202) 224-5141
Lincoln Chafee (R-RI) (202) 224-2921
Richard Lugar (R-IN) (202) 224-4814
Craig Thomas (R-WY) (202) 224-6441
Chuck Hagel (R-VA) (202) 224-4224
Lisa Murkowski (R-AK) (202) 224-6665
John Sununu (R-NH) (202) 224-2841
Peter Dominici (R-NM) (202) 224-6621
Gordon Smith (R-OR) (202) 224-3753
Arlen Specter (R-PA) (202) 224-4254
Daniel Inouye (D-HI) (202) 224-3934
Mary Landrieu (D-LA) (202) 224-5824
Ron Wyden (D-OR) (202) 224-5244
Olympia Snowe (R-ME) (202) 224-5344
Susan Collins (R-ME) (202) 224-2523
Carl Levin (D-MI) (202) 224-6221
Hillary Clinton (D-NY) (202) 224-4451
Richard Durbin (D-IL) (202) 224-2152
Harry Reid (D-NV) (202) 224-3542
John Kerry (D-MA) (202) 224-2742
Lindsey Graham (R-SC) (202) 224-5972
John Warner (R-VA) (202) 224-2023
John McCain (R-AZ) (202) 224-2235
General Senate switchboard (202) 224-3121
Whatever the sponsors of these bills would have you believe, the purpose of review by the federal courts is not to make it harder for law enforcement and the intelligence agencies to do their job of protecting us from terrorism. Rather, the courts--like your boss--are there to look over the shoulder of law enforcement to make sure they are doing their job. With the warrantless wiretapping scandal and the Guantánamo detentions, we've seen over the last five years how poor a job law enforcement can do when they don't have to worry about the courts marking up their mistakes.
Thanks for reading. Now go make some phone calls.
--September 18, 2006