Washington, DC, October 12, 2004 --  

With the doors to America's terrorism-inspired gulags beginning to crack open, mounting evidence is showing that the executive branch cannot be trusted to oversee detainees. Just yesterday, designated enemy combatant Yasser Hamdi was set free in Saudi Arabia,¹ and a week earlier, commanders at Guantanamo Bay announced that most of the inmates will be freed or transferred to authorities in their home countries.² But releases of other high-profile detainees in recent months have shown serious flaws in decision making -- both in prematurely releasing dangerous prisoners as well as wrongfully holding others.

Take, for instance, the case of Mullah Ghafar. Held in Guantanamo Bay for over two years, Ghafar was released in February and returned to Afghanistan. Less than one year later, Ghafar had rejoined the Taliban, reportedly leading a unit making hit and run attacks at Afghan and U.S. forces until he died in a firefight in September.³ Oops. Shouldn't have released that one. Another such case exists with former Guantanam prisoner Slimane Hadj. After being released to Denmark, Hadj went on TV to announce plans to go to the restive region of Chechenya to wage jihad against the Russians.⁴

But lest you believe the Bush administration's polity against what it calls "enemy combatants" is too lenient, consider Hamdi's case. The Louisiana-born fighter of Saudi parentage was captured in northern Afghanistan as a Taliban footsoldier. He was later transferred from Guantanamo to a South Carolina Navy brig after the discovery of his U.S. Citizenship. For nearly three years, the Bush administration denied his constitutionally guaranteed right to see a lawyer and appear before a judge. At a time of war, he was far too dangerous, so the reasoning went, to receive the niceties of constitutional due process. Then, two weeks ago, the Bush administration suddenly announced that Hamdi would be let go, provided he renounced his U.S. citizenship. Hamdi is now living freely in Saudi Arabia.

If Hamdi was so incredibly dangerous that the Bush administration was justified in ignoring the constitution, then why was it suddenly OK to simply let him go?

Don't expect any answers to such pesky questions, because the Bush administration isn't giving them. In response to a federal court deadline to provide info about 60 prisoners at Guantanamo Bay, the Justice Department supplied a 96-page document including nothing more than a rationalization for its refusal to answer.⁵ They won't say why the prisoners were detained, and they won't say how long they will be imprisoned. It's nobody's business but the president's, they say.

The Supreme Court, in its June ruling on enemy combatants, clearly disagreed with this attitude. And given the administration's abysmal track record in choosing which prisoners to release, it is clear that the total lack of oversight has been a real problem. While some mistakes can be expected given that over 200 prisoners have already been released⁶, culpability for mistakes increases when oversight is rejected.

The twin justification for the rejection of judicial oversight for prisoners -- the president's constitutional role as commander in chief, and the practical considerations of fighting a war -- are therefore both void. The former, because the Supreme Court ruled so in July, and the latter because of the terrible judgement demonstrated by the administration's decisions on who to hold and who to release. Sadly, the total collapse of their justifications hasn't stopped the Bush administration from its stonewalling.

Trust us, the administration says. But how can we trust the president with exclusive domain over imprisoned Americans like Jose Padilla? How can we trust his power to decide who will and who will not get to see the light of day, given the way the Hamdi, Ghafar, and Hadj cases have been handled? The record shows that the Administration does not know what it is doing, and cannot be trusted. Judicial oversight -- indeed oversight of any kind -- is sorely needed.

Related Web Columns:

Silencing the Anti-American Left, July 6, 2004

Losing the War on Terror, June 11, 2002

Shameful Comparisons, November 26, 2001

Notes:

1. Washington Post, Hamdi Returned to Saudi Arabia, October 12, 2004

2. Washington Post, Most at Guantanamo to Be Freed or Sent Home, Officer Says, Wednesday, October 6, 2004

3. Channel NewsAsia, Slain Commander Had Rejoined Taliban After Guantanamo Release: Governor, Sept 27, 2004

4. Moscow News, Danish Police Place Muslim Under Surveillance for Promising to Fight Russia, October 10, 2004

5. Washington Post, U.S. Defends Detentions, October 5, 2004

6. Washington Post, Most at Guantanamo to Be Freed or Sent Home, Officer Says, Wednesday, October 6, 2004