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© St. Petersburg Times, published November 10, 2002
In 17th century France the king could arbitrarily order someone's imprisonment in the Bastille by issuing a lettre de cachet. The executive authorization didn't have to designate a term of imprisonment and there was no appeal. Release was at the king's pleasure.
Elements of this are appearing as a central organizing principle in our nation's "war" on terrorism. Hundreds of foreign prisoners are in a holding facility in Guantanamo Bay, Cuba. All are facing indefinite detention and have no way to challenge the legitimacy of their imprisonment. The normal wartime processes for evaluating a prisoner's status -- as prisoner-of-war, civilian detainee, or innocent bystander -- are being ignored.
According to the Bush administration, the detention camp at Guantanamo was for "the worst of the worst." This is a place for "hard-core, well-trained terrorists," Secretary of Defense Donald Rumsfeld said.
The descriptions worked to sweep away any concerns Americans or members of Congress might have had about the treatment of prisoners there. As the tautology goes: Men sent to Guantanamo are not POWs or innocent civilians, they are terrorists plotting to kill Americans. And the proof of it is that they were sent to Guantanamo.
But no human endeavor is mistake-proof, especially one that involves dozens of nationalities, nearly as many languages, and relies, at times, on the word of Afghan warlords with their own agendas. Late last month, three Afghan men were released from Guantanamo after nearly a year of confinement. The Pentagon said they were not dangerous and had no intelligence value. The admission seemed to lend credence to the men's claims that they were wrongly sent there.
How many more of the 625 prisoners are like them?
"(Their release) is like the 13th dong of a clock," said Joseph Onek, director of the Liberty and Security Initiative at the bipartisan Constitution Project. "It is not only wrong in itself but casts doubt on everything that has come before."
Healthy skepticism of government is not unpatriotic, no matter what John Ashcroft says. We have a duty to ask why wartime rules of due process are not being followed. The answer reflects on us as a people and a nation.
By now, most people know President Bush flouted the dictates of the Geneva Conventions by summarily rejecting prisoner-of-war status for any of the Guantanamo detainees. A tribunal, not a chief executive, should be making those individual determinations. But what has not been widely reported is that the administration is also breaking clear military regulations by refusing to provide status hearings for detainees who request it.
Army Regulation 190-8, titled "Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees," is a comprehensive set of rules for dealing with people in the custody of the armed forces.
One section states:
"A competent tribunal shall determine the status of any person not appearing to be entitled to prisoner of war status who has committed a belligerent act or has engaged in hostile activities in the aid of enemy armed forces, and who asserts that he or she is entitled to treatment as a prisoner of war." (I added the emphasis.)
The Department of Defense has failed to respond to questions asking for a count of Guantanamo detainees requesting POW status. But a spokesman for the department did make it clear that, regardless of any requests, the regulation would not be followed and no tribunals would be constituted. "The determination has been made as to the detainees' status," wrote Major Ted Wadsworth in an e-mail. "That determination was made by the President in his role as the commander-in-chief. His Article II powers (in the Constitution) give him the authority to made (sic) this determination. That authority is certainly greater than that of 190-8."
In other words, the president has the power to reject, modify or ignore Army regulations at will.
We call that being above the law.
"The release of the Afghans point up why these regulations are necessary," said Onek, who initially directed me to the Army rules. He said the process was a way to weed out mistakes.
Eugene Fidell, a Washington expert in military law, agrees. Status tribunals have been routinely observed in other engagements without it being too cumbersome, Fidell said. For example, during the Gulf War, approximately 1,200 such hearings were held. "The administration would have been well served to hold hearings even if it had the winning argument (as to why al Qaida and Taliban prisoners should not be considered POWs). It would have engendered public confidence in the detention, and blunted the criticism both domestically and with foreign audiences," Fidell said.
Kings, though, don't worry about what others might think. Who needs to bother with due process when lettres de cachet are available and the populace is more than willing to go along?