The Court gives an example of testimony by one of the detainees (not one in the case) that aptly illustrates the bind that the prisoners are put in. It's too long to type in manually (the opinion was scanned, so I can't copy and paste), but you can find it at pages 46-48. Essentially, the government was asking the detainee if he knew any al-Qaeda, and he said he didn't think so, but he'd be happy to tell of his relationship with any specific person the Court had in mind. The Court refused to name any names, at which point the detainee asked how he could refute charges when he couldn't even see the point of reference from which the charges were being made.
The opinion also specifically blasts the lack of attorney's to represent the detainees. They get a "Personal Representative," but s/he isn't a lawyer and is obliged to reveal any inculpatory evidence he hears to the tribunal. As a result, "there is inherent risk and little corresponding benefit should the detainee choose to use the services of the personal representative." Furthermore, the proceedings allow evidence contained by way of torture to be admitted, another area in which the Court found fault. Finally, the Court blasted the Bush administration for its overly broad definition of "enemy combatant," which the government admitted could be applied to a person who taught English to the child of an al-Qaeda member.
I'll conclude with a particularly compelling passage from Reid v. Covert, cited by the Court.
At the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution. When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land. This is not a novel concept. To the contrary, it is as old as government.
Actually, the Bill of Rights expressly extends its protections to all "persons" within the jurisdiction of the US. As was pointed out in Plyer v. Doe, regardless of the legality of their presence in this country, aliens are still clearly "persons," which limits what our country can do to them (surely the US couldn't just go on a wanton killing spree of the Gitmo detainees, right?).
ReplyDeleteAs for giving rights to those who refuse to respect our laws, two responses.
1) The whole point of having a fair trial is to DETERMINE if they violated our laws or not. Many of the Gitmo detainees deny they have sought to do harm in any manner to the US. We can't just fiat them into the criminal category, our whole system is premised on proving it (especially when the accused denies they've done wrong).
2) Several aspects of our constitution are designed EXPRESSLY to protect those who are accused of not respecting our laws (4th, 5th, 6th, 7th amendments), and at least one is designed to protect those who have already been convicted of it (8th). It would be facile to suggest that constitutional provisions written specifically with accused criminals in mind don't apply to those same people because they don't respect our laws. That would write literally half of our bill of rights out of existence (talk about judicial activism!).