Yesterday, the federal circuit court of appeals ruled that the government may indefinitely detain foreigners who have been designated as “enemy combatants” and authorized the CIA to use aggressive interrogation tactics. This reverses previous rulings by the Supreme Court, upholding the Congress’s Military Commissions Act, and deprives detainees of critical due process rights.

Why do I care? I’m not particularly political – less conservative than my immediate family, but more so than most of my friends and colleagues. My ideology could best be described as libertarian, or as Heinlein put it, “rational anarchist”.

I am, however, a patriot and an idealist. I believe in the heart of America; we are the land of the free and the refuge of the huddled masses. We have long taken great pride in holding the moral high ground as a place of tolerance, individual liberty, rule by law and free enterprise.

Who are the Guantanamo detainees?

Currently, there are about 395 people held in Cuba, some for up to five years. Our government classifies them as “enemy combatants” under the Geneva Conventions. Some sources indicate that only 7% of these detainees were actually captured by American or coalition forces, with the rest secured by other local authorities or lucratively-compensated bounty hunters. More critically, the military has determined that more than half the currently designated “enemy combatants” at Guantanamo have committed no hostile act against the United States.

What is their status?

Under Article 4 of the Geneva Conventions, Taliban detainees are not entitled to POW status, which would protect the detainees on two fronts. It would protect them from questioning by aggressive means, limiting interrogation to name, rank and serial number, and it includes a guarantee of a fair trial.

Nonetheless, the Bush administration has de facto agreed to apply the Geneva Conventions to all terrorism suspects in U.S. custody, giving them a newly coined, lesser status of “enemy combatants”.

What rights has the US Government extended to them?

June 28, 2004 – the Supreme Court ruled in Hamdan v. Rumsfeld that “illegal combatants” such as those held in Guantanamo can challenge detentions but can also be held without charges or trial.

January 31, 2005 – U.S. District Court ruled that:

(1) detainees had the fundamental Fifth Amendment right not to be deprived of
liberty without due process of law;
(2) upheld complaints for violation of due process based on extensive reliance on classified information unavailable to detainees, denying them a fair opportunity to challenge their incarceration;
(3) stated due process required consideration whether the evidence upon
which the tribunal relied in making its “enemy combatant” determinations had
been obtained through torture;
(4) upheld complaints for violation of due process based on an overly broad definition of “enemy combatant” subject to indefinite detention; and
(5) applied Geneva Conventions to the Taliban detainees, but not to members of al Qaeda terrorist organization.

June 29, 2006 – the Supreme Court ruled in Hamdan v. Rumsfeld that the military commissions established by executive order to try detainees are unlawful and violate the U.S. Uniform Code of Military Justice, 1949 Geneva Conventions and various human rights standards relating to fair trials. The ruling also applied Article 3, common to all the Geneva Conventions, in such a situation, which–among other things–requires fair trials for prisoners.

October 17, 2006 – The president signed the Military Commissions Act, authorizing him to establish military commissions to try unlawful enemy combatants, authorized them to sentence defendants to death, and prevented defendants from invoking the Geneva Conventions as a source of rights during proceedings. The law addresses permissible interrogation methods, making US interrogators subject to only a limited range of “grave breaches”, and clarifies what actions would subject interrogators to liability under the existing federal War Crimes Act.

February 20, 2007 – The US Court of Appeals dismisses hundreds of cases filed by foreign-born detainees in federal court and also threatens to strip away court access to millions of lawful permanent residents currently in the United States.

Why is America wrong?

This latest ruling makes me think that we’ve hopelessly lost our way in the woods.

Most importantly, the detainees at Guantanamo are people. That’s the basis of the concept of human rights. They are living, breathing, self-aware, conscious beings, with families and homes. Some are healthy, some ill, and some insane. Some gave orders; some simply followed orders. Some are probably innocent bystanders, and some are certainly guilty as hell of unspeakable evil. All deserve a detention free of torture, the right to hear the charges and evidence against them, and a fair hearing of those charges under international law.

If we cannot or will not provide that, than we are not a whole lot better than our enemy, truly the ugly Americans the world calls us. We are sinking to the level of communist USSR, which disappeared thousands of hopeless, nameless detainees into its gulag detention camps with no due process, no records and no accountability.

To give consideration to the opposing viewpoint, some consider this form of “indefinite” detention a benefit, not a punishment. The right to hold captured enemy combatants is the quid pro quo for honoring a corresponding obligation to accept surrender and grant quarter, as opposed to simply killing defeated opponents on the battlefield.

I think that America, its people and its ideals, is so much better than that. I am bitterly disappointed in this decision.