Should the government of the United States pay reparations to those men who were falsely imprisoned for years at the American detention facility at Guantanamo Bay?
It’s a serious question.
This week, President Bush signed an executive order providing for trial by military commission of three detainees who have been singled out to face something that may–or may not–be due process. Court battles lie ahead. The other men–more than 400 of them, locked in the cells and cages behind the wire at GTMO–remain in legal limbo, labeled "enemy combatants," a terminological innovation designed to deny them the protections of either prisoners of war or of common criminals. BUT–what if we are wrong about some of these men? What if, in the shock and trauma following 9/11, we ended up seizing people who were not in fact terrorists, who did not in fact do or mean us harm, and hauled them around the world, interrogated/tortured them, cut them off from their families, and incarcerated them without trial for years? What would we owe them?
First, no matter how you feel about what the United States has done at Guantanamo Bay–whether you feel it’s a justified and lawful wartime measure or a disgrace on the nation–most of us would agree on a couple of big principles: Our country should not imprison the innocent. And when our country makes a mistake–when we break faith with our commitment to the rule of law–we are a great enough country to admit it, and make amends.
Second, we have to stipulate something, as the lawyers say: We have no idea how many innocents might have been imprisoned at Guantanamo Bay. That’s because the procedures for determining who the prisoners in our custody are and what–if anything–they have done are deeply flawed, most legal scholars agree. Detainees have been denied access to much of the evidence against them, including the identity of their accusers; they have no right to legal representation; evidence derived from coercive interrogation techniques used at Guantanamo–including techniques amounting to torture under international standards–is allowed to be considered; and hearsay is admitted.
Now, it is true that President Bush, Vice President Cheney and officials at the prison all claim that there are "no innocent" men in the cells at Guantanamo, that they are all "bad people" who were all "picked up on the battlefield," "dangerous," "the worst of the worst."
Those claims are false. By the government’s own admission, 38 of the 558 prisoners–7 percent–who have been held at Guantanamo are "no longer enemy combatants." The US government is gradually releasing them. If they were so "dangerous," truly "the worst of the worst," would we really just let them go? The potential fraud of this designation was noted–with a hint of outrage–by US District Judge James Robertson in 2005: "The government’s use of the Kafka-esque term ‘no longer enemy combatants’ deliberately begs the question of whether these petitioners ever were enemy combatants." In other words, they may well be innocent.
That’s not all. Administration officials–from the president on down–have constantly claimed all the men at Guantanamo were "picked up on the battlefield." This is also demonstrably false. According to the military’s own determinations–as researched and analyzed by Seton Hall University Professor Mark Denbaux and his son John Denbaux in a thorough report–55 percent of those held at Guantanamo did not commit any hostile acts against US or coalition forces; 40 percent have no definitive connection with al Qaeda; 18 percent have no definitive connection with either al Qaeda or the Taliban; and only 5 percent of the detainees were actually captured by US forces. Most of the rest were sold to us by bounty hunters in Pakistan. The "worst of the worst?" Read those statistics again–the military’s own official findings on the men they are holding in those cells–and ask yourself, again: If some of these men are indeed innocent, what do we owe them?
In 1988, the United States Congress passed and President Ronald Reagan signed the "Civil Liberties Act of 1988," which formally apologized to the more than 120,000 Japanese-Americans interned during World War II and provided for symbolic compensation of $20,000 per person. The law’s purpose was to "acknowledge the fundamental injustice" of what our country had done. In signing the bill, President Reagan said, "What’s most important in this bill has less to do with property than with honor. For here, we admit a wrong."
Honor. For millions in this country and around the world, what has happened at Guantanamo Bay has stained the nation’s honor. President Bush himself has acknowledged that the prison has become a symbol of injustice, dismaying our friends and inspiring our enemies. The new Democratic Congress is considering cutting off funding for the prison at Guantanamo Bay, forcing the administration to shut it down. Perhaps the Congress should go further–establishing an independent commission to review claims of innocence from those men already released from GTMO, and, if the panel concludes there have been wrongful imprisonments, providing for an American apology and compensation. That would say a lot about our country. It might remind people what’s at the heart of our democracy–an ideal of justice, the commitment to truth. And that would surely inspire our friends and dismay our enemies.
Sometimes, as Ronald Reagan knew, the honorable thing to do is admit you’ve done wrong. And–honorably–seek forgiveness.
What do you think?