by Cesar Chelala and Alejandro Garro
Eric H. Holder Jr., the new U.S. Attorney General, has unambiguously stated his intention to end one of the most shameful episodes in U.S. legal history: “I can assure the American people that Guantánamo will be closed,” he announced at his confirmation hearings in Washington. Effective closure, however, calls for reflection as to the lessons to be drawn from this sad chapter in our constitutional history.
In 2006, Congress passed the Military Commissions Act (MCA), in effect approving the military tribunals established by President George W. Bush and denying the writ of habeas corpus to the Guantánamo detainees. Diverting the prosecution of terrorists to ad hoc martial courts was and remains a sad mistake. The constitutionality of these military commissions, despite congressional authorization, remains unclear. Indeed, bypassing the regularly constituted federal courts has not resulted in security gains with respect to terrorism. In a clear break with the Bush administration’s policies, Mr. Holder has declared that the system of military commissions does not guarantee the rights of due process for detainees. Lesson #1: the Military Commissions Act is far from indispensable and has no place in trials of civilians.
In June 2008, in a closely divided decision, the Supreme Court ruled that, despite congressional authorization, even prisoners unilaterally labeled as “enemy combatants” by the executive branch are entitled to challenge their detention through habeas corpus, a decision yet to be applied for hundreds of Guantánamo detainees. While stressing that the country is still in a state of war, Mr. Holder warned against the “false choice” between upholding civil liberties and protecting national security. Lesson #2: the United States has every right to detain those who pose a threat to its citizens and soldiers but those detained must have the right to challenge the legality of their detention before a federal court.
In November 2008, in the course of the military commission case against Afghan national Mohammed Jawad, army judge Col. Stephen Henley threw out a confession extracted under torture, confirming what legal experts have long maintained: coerced confessions are inherently unreliable and, even when reliable, taint the judicial process which must be exemplary in every respect. During his confirmation hearings, the new U.S. Attorney General left no doubt that water boarding used by U.S. operatives against Guantánamo detainees, constitutes torture. Lesson #3: the government has every right to search for valuable intelligence concerning the intentions and tactics of suspected terrorists, but torture must never be condoned as a valid method of extracting information, not even under the guise of self-protection or for the sake of lives.
The rationale behind the “enemy combatant policy” is to incapacitate suspected terrorists by holding them indefinitely, incommunicado and without charge, for the duration of the so-called “war on terror”. The act of circumventing the most basic guarantees against arbitrary detention affects not only the suspects but everyone else, hurting innocent bystanders caught in the crossfire and ultimately undermining the morale of those fighting terrorism. The detention of dangerous enemies is lawful and makes us safer, but not if the cost is the loss of democratic principles and human dignity. Lesson #4: whatever the challenges posed by the terrorist threat, unilaterally labeling individuals as enemy combatants and detaining them indefinitely and incommunicado by executive order is unacceptable practice.
The abuses prisoners have been subjected to at Guantánamo underscore the need to balance executive discretion with access to legal counsel and meaningful judicial review by federal courts. With Eric H. Holder’s confirmation as U.S. Attorney General, we may look forward to significant improvement in accommodating the “war on terror” with the rule of law, which the executive branch has a primary duty to uphold.
Cesar Chelala is a co-winner of an Overseas Press Club of America award for an article on human rights. Alejandro M. Garro is Professor of Comparative Law at Columbia University, New York.