I saw a film last year at the University of Maryland Law School called “The Response.” The movie was written and produced by Sig Libowitz, an alumnus of the law school. The 30-minute film crystallizes the constitutional and moral dilemma that tormented and divided the military judges determining the combatant status of the Guantanamo Bay detainees. It was filmed at the law school and is based on transcripts from “Combatant Status Review Tribunal” hearings.
In the movie, Aasif Mandvi from “The Daily Show with Jon Stewart” plays the role of al Aqar, a man accused of being an al Qaeda bomb maker. Shackled at the ankles and chained to the floor, he stands before three military judges, two men and one woman. The judges refuse to present him with any evidence concerning the charges against him because, under the Bush administration’s suspension of habeas corpus, the accused has no right to this classified information. The man cannot defend himself effectively.
Toward the end of the movie, it is clear that the judges, bar one, are confused if the government’s evidence is adequate to label the accused as an enemy combatant and hold him forever in U.S. custody.
Here are some facts about the Gitmo prisoners: Some are dangerous al Qaeda and Taliban operatives. Others are innocent victims, turned in by bounty hunters far from the battlefield. Some were juveniles when they were coerced into the Taliban fighting forces. Some are Muslim men who were in Afghanistan doing perfectly legal jobs.
The initial U.S. military screening procedures, done shoddily in the war theater, failed to separate low-level jihadists and innocents from the more valuable and hardened terrorists. This mistake was compounded by the Bush administration’s subversion of American and international law to keep these men imprisoned for years, without proper cause or due process.
Also, the military tribunals were created too late, functioned in secrecy, and their rules of engagement did not hew to accepted standards of law. Military judges faced prisoners who cried foul and claimed torture.
By flouting the Geneva Conventions and endorsing torture, the Bush administration failed these judges. It did not allow them to do their jobs, as their conscience would have dictated.
When Guantanamo is dismantled, those classified as heinous terrorists by the intelligence community should be held in isolation, in maximum security federal prisons and criminally prosecuted. The legal difficulties of doing this are not insurmountable, but holding these men in preventive detention forever or prosecuting them in military tribunals conducted like kangaroo courts does not become the United States, which has the most enviable constitution in the world.
Low level terrorists who have no useful intelligence should be set free or sent to countries that will accept them for subsequent rehabilitation.
Among the released there are bound to be some recidivists. This doesn’t mean we should hang on to Gitmo. Americans who have had their children treated brutally by authoritarian foreign regimes, tortured and held in prisons on false charges, without trials, understand personally that Gitmo symbolizes the dark side of America, an America so fearful it will let its leaders trample its Constitution in exchange for ephemeral promises of safety.
It is not possible to jail every terrorist in the world who threatens us. President Obama is on the right track about drawing down the curtain on the Gitmo saga.
Usha Nellore is a writer living in Bel Air. Reach her at [email protected].
