Supreme Court justice for Guantanamo Bay

A friend of mine was upset yesterday that the Supreme Court had ruled to grant Guantanamo detainees the right of habeas corpus. How outrageous, he said, to grant such rights to “jihadists,” to “thugs who killed 3000 on 9/11.”

Let’s not forget, however, that hundreds of Guantanamo detainees weren’t jihadists or involved in the 9/11 attacks. Many were innocent men and the majority consisted of men whose greatest crime was to defend their country against invasion. We invaded Afghanistan. How likely is it that the majority of the human beings we captured in that invasion were 9/11 operatives or militant jihadists? Even those who picked up weapons against us during the invasion had the right to defend their country and were due POW status. Instead our government devised a category in which it defined all detainees as having neither civilian nor POW rights. It declared by fiat that Guantanamo Bay was something like “within the sovereignty but not under the jurisdiction of” the United States so that it could presume itself within legal boundaries to treat these human beings like “jihadists” and “hajis” without any accountability.

Yesterday’s Supreme Court decision means that innocent men can finally not be presumed guilty without trial and held in prison without sufficient legal recourse. It means that de facto POWs may finally be under the lawful and humanitarian protections of the Geneva Conventions. It also means that sworn militant jihadist enemies of the United States can be tried and executed in a way that dignifies us as a just society.

My friend was disturbed that we were now granting soldiers captured in war access to our legal system. But these men were not granted POW status by our government. They were defined as being in the new category of “enemy combatants,” a category devised ad hoc specifically to deny them the legal protections due to prisoners of war. But now that the Supreme Court rules to grant them non-POW rights, defenders of Guantanamo policy are eliciting this prisoner of war comparison. It is a classic case of having cake and eating it, too. The prisoner of war comparison was effectively nullified when the United States defined its “enemy combatant” category as an antidote to granting its “detainees” prisoner of war status.

If we do not want to dignify Guantanamo inmates as either prisoners of war or as having civilian legal rights, then what do we want to do with them? Dehumanize them as “jihadis” so that we can sooth our consciences about holding POWs and innocent men without charge and without trial indefinitely? My friend claimed that the Supreme Court decision was absurd, but the absurdity that I see is for the state, any state, to define human beings in such a way as to claim absolute power over them. As applied to this case the absurdity is to deny men both POW status and the right to trial yet claim that the state has a right to incarcerate them because they are POWs and guilty of crimes. How much more poignant can absurdity be?

My friend appealed to Justice Scalia’s statement that the majority’s ruling will result in the death of Americans. Currently, however, Americans are dying because President Bush keeps them in Iraq. Of course, those lives do not matter for rhetorical purposes, do they? But to the point: Since when does granting men either POW status or the right to trial jeopardize the United States? Protection from the abuse of government is the preeminent mythical principle that has emboldened Americans throughout history to defend themselves against enemies whom they perceived to commit such injustices as arbitrary incarceration. Our national idealism dictates that justice is better served by trial than by stripping human beings of basic human rights. This was demonstrated, for example, in our sense of justice for trying Saddam Hussein. What makes us think that, after charging and trying Hussein, our national sense of justice does not dictate either that we grant our captives POW status or grant them the right to trial? Who do we think we are? Who do we think our captives are? Are they dogs? Are they worse than dogs? Are they sub-human “jihadis” and “hajis”? Yes, let us dehumanize them so that we can feel justified in exacting our hatred. Never mind that the majority of them had nothing to do with al-Qaeda and were defending their country from invasion. Never mind that many of them were neither soldiers nor combatants when we captured them.

In my opinion, it is past time that we humanized these people with the dignity of the legal system, seeing that we denied them prisoner of war status. Had we the decency to dignify them as prisoners of war from the start this never would have gone to the Supreme Court in the first place. This case was not about counterparts to World War II POWs. It was about granting rights to men who were not protected by either national or international law. It was not largely about thugs who killed 3000 people on September 11, 2001. It was about other men who should have been granted POW status for defending against an invasion of their country and others again who were innocent even of that. As far as 9/11 international criminals go, it was about finally charging them with their crimes in a way that dignifies us as a just society. The damage that has been done to America stems from the indignity of presuming hundreds of men who had nothing to do with 9/11 as guilty of being “thugs of 9/11” and straining at every legal and moral gnat to hold them without trial, without charge, and without even the dignity of prisoner of war status.

My friend was indignant at the “liberal justices” for how their majority decision would damage America. But the damage done to America this time was done by its highest leaders when they acted on an ad hoc presumption of the state's absolute power over human life.