By AARON RILEY
Staff Writer
Since the construction of the Guantanamo Bay detention center in 2002, there hasn’t been a more controversial containment area since the Gulag’s penal labor camps, as declared by Amnesty International Secretary General Irene Khan.
Much criticism has arisen from the treatment of prisoners, drawing from accusations of waterboarding, sedation, sleep deprivation, prolonged constraint, stripping, exposure to cold, abuse of the Qur’an, and other moderate to severe interrogation techniques.
The accusations have sparked protests from citizens, human rights groups, pundits, and even politicians. The controversy has also offset increasing demands to properly define laws on the detention of foreign prisoners. Moreover, many strive to ascertain true constitutional precedent regarding habeas corpus rights underneath the alleged frills of the Bush era.
Most of those frills have been induced by the panic of a post-9/11 world. Is the suspension of habeas corpus simply another unconstitutional measure taken in a list of them that have been justified by the previous administration as necessary sacrifices and critical steps in overcoming terrorism?
“Overall it comes down to security vs. civil liberties. Some are willing to sacrifice security for civil liberties and some are not,” said CCC professor Richard Curcio.
In January, President Barack Obama ordered a suspension of military commissions at the Guantanamo Bay detention center in Cuba for 120 days pending inquiry from the Pentagon and formation of a new detention policy. While it is expected that Guantanamo will be closed before the year’s end, the issue still raises many questions from both sides of the argument.
Are suspected terrorists or any Guantanamo inmates rightfully owed habeas corpus if not U.S. citizens?
“That’s the crux of the controversy, isn’t it?” Curcio laughed. “It depends on how the individuals are defined. If they are defined as prisoners of war, I believe, under the Geneva Convention, there are certain restrictions. They have the right to not be tortured and so on, but as far as having all the rights to habeas corpus…I really don’t think they do. But if they are defined as something other than prisoners of war…”
It is true that the Bush administration has commonly used the expression “unlawful combatants” rather than “prisoners of war,” but it is difficult to discriminate any slight differences or criteria between them.
If they do have habeas corpus rights, do the Antiterrorism and Effective Death Penalty Act of 1996 and the Military Commissions Act of 2006 hinder the use of the federal writ anyway?
“It is hard to say how aggressively the Obama administration will move to eliminate the decisions of grotesque military trials, but as we speak, the Restoring the Constitution Act of 2007 is slowly working its way through the courts,” explained CCC professor Kevin McGarvey. The act, if passed, would give detainees access to the U.S. court system, redefine the term “enemy combatant,” and restore due process.
Also, why can’t U.S. intelligence accurately discern members of organized terrorist groups from wrongly accused noncombatants? How extensively and carefully planned is the release of inmates from Guantanamo Bay detention center? Could the poor conditions, torture, and a refutation of habeas corpus rights aid the defense of actual dangerous detainees if they were to be tried in a legal setting? These questions remain unanswered.
Certainly, there is a lack of accessible information on the going-ons of Guantanamo. Many of the questions remain unanswered. The White House has yet to elaborate on the future of detainees after the closing of Guantanamo. Where will they go, who will take them? Who will be repatriated?
According to McGarvey, “Habeas corpus is an absolute benchmark of American values and ideals. Alexander Hamilton, in Federalist paper number 84, wrote that ‘the establishment of the writ of habeas corpus, the prohibition of ex post facto laws (changing the laws after the fact) are perhaps greater securities to liberty and republicanism than any (the Constitution) contains.’ Basically, habeas corpus protects citizens from arbitrary executive power. The key issue in the debate has been whether or not the right applies to non-U.S. citizens.”
McGarvey concluded, “The United States is supposed to be, as John Winthrop said 400 years ago, and as JFK repeated in his 1961 inauguration speech, a ‘shining city on a hill,’ acting as an example for the world. We’ve lost a lot of prestige and power in the world over the last decade as the US has engaged in misguided and dangerous experiments in the hopes of eliminating terrorism.”

