This is the story of a man without a name. For the past four years he has been a prisoner of the United States government; yet if our leaders had their way, the fact he even exists would remain unknown to anyone but themselves. According to the administration, this man is a terrorist, and therefore deciding whether to imprison him indefinitely without trial is the sole and unreviewable prerogative of the president.
His real crime is that he was born in Afghanistan. This negligent act caused him to be conscripted by Taliban soldiers, who forced him to become a cook’s assistant in the city of Narim. When Narim was attacked, he fled the city before surrendering to the Northern Alliance. These soldiers then turned the cook’s assistant over to the American military, who imprisoned him at Guantanamo Bay.
The administration takes the view that being conscripted into the Taliban as a cook’s assistant makes someone a terrorist, and that fleeing from aerial bombardment constitutes “engaging in hostilities” against United States forces. The administration also believes that such people should have no access to lawyers or courts, and that they should be “detained” _ this is a polite word for being locked in a cage _ and subjected to “coercive interrogation techniques” (which is a polite phrase for torture) until the end of the global war on terror, which is to say for the rest of their lives.
There is nothing unusual about this nameless man’s tale. Most of the 500 men being held at Guantanamo Bay can tell a similar one _ or would if they hadn’t been forbidden from speaking to anyone in the outside world. Because the Supreme Court has finally allowed lawyers to examine the allegations against these men, we now know that almost none of them are terrorists in even the loosest sense of the term, and that indeed most of them are guilty of nothing.
Glimpses of this shameful story can be gotten from a report authored by Mark Denbeaux, a Seton Hall University law professor, and his son Joshua, an attorney in private practice. This report reveals that, according to the government’s own allegations, only a handful of the prisoners at Guantanamo are supposedly al Qaeda fighters, and that only a tiny percentage were captured by U.S. forces (many were turned over to the U.S. by bounty hunters; the evidence against them consists of nothing more than the bounty hunters’ accusations).
These concessions are all the more stunning once one realizes that the government defines being a member of al Qaeda so loosely that prisoners who have been accused of having spoken to someone in al Qaeda can be declared members of the organization on that basis alone.
Combine this with the fact that, unlike the cook’s assistant, the majority of the prisoners are not charged with “engaging in hostilities,” and it becomes clear that most of these men were not even Taliban conscripts, let alone terrorists. And this is the case even though the report is forced to assume, because these men have been denied any access to lawyers or courts, that everything the government alleges is true. (Imagine what this “evidence” would look like if the government was actually required to prove anything.)
The only difference between the Gulag and Guantanamo is the scale of the crime. (There is one other difference: Stalin’s efforts to keep the homeland secure were not inconvenienced by independent courts or a free press). The men who ordered this crime to be committed, and who are taking care to ensure that it continues to be committed, call themselves Christians. On the Day of Judgment, will it profit them to point out that they imprisoned and tortured just a few hundred innocent men? And what account will we give of what we did or failed to do when we learned such things were being done in our name?
(Paul C. Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)