NEW YORK—Tens of thousands of innocent detainees have passed through Guantanamo, Bagram, Abu Ghraib, Diego Garcia and other U.S. torture facilities. Thousands remain "disappeared," possibly murdered. Some may be on one of the Navy vessels recently revealed to have been re-purposed as prison ships. Dozens have been beaten to death or killed by willful medical neglect.
For seven years, the Bush administration, the Democratic Congress and its media allies have denied "unlawful enemy combatants" (or, as Dick Cheney called them, "the worst of the worst" terrorists) the right to habeas corpus, the centuries-old right of persons arrested by the police to face their accusers and the evidence against them in a court of law.
Thanks to a 5-4 decision by the Supreme Court, America's latest flirtation with fascism is coming to an end. Parts of the infamous Military Commissions Act of 2006 that eliminated habeas corpus have been declared unconstitutional. Prisoners at Guantanamo and possibly other American gulags, will now be allowed to demand their day in court. Since the government doesn't have evidence against them, legal experts say, most if not all of "the worst of the worst" will ultimately walk free. "Liberty and security can be reconciled," Justice Anthony Kennedy wrote for the majority.
In short: Oops.
"America is back," Barack Obama has said he will tell the world if he becomes president. Even if McCain wins, Guantanamo will probably be closed. Torture will be re-illegalized. Which is really, really great. But there's a problem. How do we give back the four years we stole from Murat Kurnaz?
In December 2001, Kurnaz was a 19-year-old German Muslim studying in Pakistan. He was pulled off a bus by Pakistani security services, who delivered him to the CIA for a $3,000 bounty. He was flown to Guantanamo concentration camp, where he received what The Village Voice's Nat Hentoff calls "the standard treatment: beatings, sleep deprivation and special month-long spells of solitary confinement in a sealed cell without ventilation."
He went on hunger strike, and Kurnaz's tormentors apparently worried he might starve to death. After 20 days "they gagged me and shoved a tube up my nose, stopping several times because the tube filled with blood," Kurnaz remembers.
What did this "worst of the worst" do to deserve such treatment? Nothing. But don't take my word for it. Six months into his ordeal, the U.S. military determined there was "no definite link or evidence of detainee having an association with al-Qaida or making any specific threat toward the United States." The U.S. government knew Kurnaz was innocent. Yet they held on to him another three and a half years.
It would be comforting if the torture of innocent men sold by self-interested bounty hunters were an aberration. It wasn't. A McClatchy Newspapers analysis confirms the horrifying results of a Seton Hall University study. "Only 8 percent of Guantanamo detainees were captured by U.S. forces," reports McClatchy. "Eighty-six percent were turned over to the United States by Pakistan or by the Northern Alliance," a coalition of Afghan warlords. "The bounty hunters were often the source of allegations."
Right-wingers say security matters can only be entrusted to the military. "The courts," writes Richard Samp of the pro-government Washington Legal Foundation in USA Today, "simply lack the expertise and resources to justify second-guessing military experts on such issues." Maybe. But the military is run by liars.
"The McClatchy investigation found that top Bush administration officials knew within months of opening the Guantanamo detention center that many prisoners weren't 'the worst of the worst.' From the moment that Guantanamo opened in early 2002, former Secretary of the Army Thomas White said, it was obvious that at least one-third of the population didn't belong there."
At least six died at Gitmo. (The Pentagon characterized a spate of suicides as clever acts of "asymmetrical warfare.")
Deranged leaders who carry out horrific acts of mass murder and oppression with the consent of the people are hardly new to American history, reminds Allen Weinstein, archivist of the United States. "Begin with the Salem witchcraft trials of the 1690s," he told a commencement ceremony at Southern Methodist University. "Move forward to the Alien and Sedition Acts of the early Republic, and from there to the suspension of habeas corpus during the Civil War. Turn then to the arbitrary political arrests of the First and Second World Wars, the many abuses of the Cold War McCarthy era, and from there the civil liberties climate in our time."
So many oopsies! But those are temporary excesses, Weinstein reassures. "Self-corrective forces at work in American society"—lefties, liberals, a single swing vote on the U.S. Supreme Court—always pull us back before we careen off the brink. Disaster is avoided.
Which would be fine if it weren't for the problem that: 1) one of these days, Justice Kennedy won't be around to restore the rule of law. The other problem being: 2) a lot of "witches" get drowned during our periodic episodes of madness.
No one was ever held accountable for blacklisting actors or massacring Native Americans. Such tacit endorsement of villainy sets the stage for the next outrage committed during a future "temporary madness" driven by national security worries. Apologies are rare. Penance is scarce and stingy. The government stole the homes and businesses of Japanese-Americans and shipped them to internment camps during World War II; decades passed before Congress cut them checks for a measly $10,000.
We think we Americans are good people who do bad things when we're not on top of our game. "Self-corrective forces," we pat ourselves on our collective backsides, always kick in before we go too far.
But that's not really how it is.
Some Americans are good. Other Americans are bad. And the good ones are often lazy, willing to let the bad ones get their way.
Ted Rall is the author of the book Silk Road to Ruin: Is Central Asia the New Middle East?, an in-depth prose and graphic novel analysis of America's next big foreign policy challenge.