Law Professor David Cole of Georgetown University argues in the New York Times that the prisoners held at Guantánamo Bay, Cuba, should have the same rights to due process as U.S. citizens. I’m not sure what their status should be, but they need some kind of process. They have been declared to be “unlawful combatants,” which is neither a domestic criminal nor a prisoner of war. The U.S. government takes this to mean they can be held indefinitely without trial, without counsel and without repatriation. I don’t think our government should be able to hold anyone indefinitely without trial.
The precedent for calling them “unlawful combatants” was the case of eight German saboteurs who landed on Long Island and off the coast of Florida in 1942. President Roosevelt ordered them tried in a military tribunal. They appealed to civil courts, and the U.S. Supreme Court labeled them “unlawful combatants.” Six of them were electrocuted a few days later.
A few thoughts. First, they had been landed by a German Navy U-Boat on U.S. territory, in uniform and with explosives and detonators. They were soldiers incognito, more like spies. The Guantánamo prisoners were captured when we went to Afghanistan and engaged them on the battlefield. They seem more like prisoners of war, and would be, if they were fighting for a recognized state.
Second, the Germans did have access to U.S. lawyers and courts. And third, not everything we did in World War II was the right thing. The same Supreme Court that allowed the military tribunal for the German saboteurs allowed the detention of Japanese American citizens. If we are interested in liberty we should not be too eager to accept wartime precedents, because they almost always favor the government.
If the detainees at Guantánamo are part of the organization that attacked us on Sept. 11, 2001, we have reason to hold them. Let’s have a reasonable process and consider them one by one.
Respond to this posting