All this outrage builds on the dissent registered by Justice Antonin Scalia. The court's decision "will make the war harder on us," he thundered. "It will almost certainly cause more Americans to be killed.""Abundant evidence of guilt," eh? What are these prisoners of the Empire supposed to be guilty of? Doesn't criminal "guilt" require a law to have been violated? Whose law are we talking about? Surely we don't think foreigners are obliged to obey U.S. law; and if we're talking about some Iraqi or Afghan law, where did Americans get the authority to administer other people's laws? The basic paradigm under which the Imperial States of America has been operating -- that we're definitive of good, and that any opposition to us is implicitly criminal -- isn't even questioned here.
Well, it won't have that effect unless it leads to inmates being released—which it has not, will not anytime soon, and may not ever. If and when it does, he may have a point, though not necessarily a powerful one.
Anytime you let someone out of prison, even if he's innocent, you create the possibility that he will someday kill someone. Scalia makes much of the supposed fact that 30 of the detainees freed from Guantanamo "have returned to the battlefield." Just because they were later captured or killed, however, doesn't mean they "returned" to the war.
Some of them may have been victims of mistaken identity, which could explain why those softhearted folks at the Pentagon let them go. But stick a blameless unfortunate in a cage for six years, abusing him in the process, and when he comes out, he may seek revenge. The only way to eliminate the risk is to keep all the detainees locked up forever.
Even the Bush administration has not gone that far. It was happy to free more than 500 inmates over the years. When it did, by the way, nobody accused the president of causing more Americans to be killed.
Besides, any releases are only speculative right now. To have a chance at freedom, a prisoner will have to make a plausible case that he's innocent. The administration had already planned to try 80 of the detainees before military commissions, which suggests it has abundant evidence of guilt.
[ ... ]
Let's suppose there's an inmate whom the Pentagon thinks was fighting for al-Qaida but lacks any supporting evidence it can use in court. Does he now have a get-out-of-Gitmo-free card? Not necessarily.
In that case, says Northwestern University law professor Ronald Allen, the government could classify him as a prisoner of war— who, like POWs in previous wars, may be held until the hostilities cease. The trouble, from the administration's point of view, is that he would then be entitled to standard POW protections, such as being treated humanely and not being punished for refusing to answer questions. But at this point, that's a small price to pay.
Look at what seems to be Mr. Chapman's real objection to keeping all these prisoners locked up and abusing them. "(S)tick a blameless unfortunate in a cage for six years, abusing him in the process, and when he comes out, he may seek revenge." Not "it's morally unacceptable to imprison and torture a blameless unfortunate," which in itself would be far short of "it's morally unacceptable to imprison and torture a man who was seeking to defend his country against an unprovoked invader" (that is, us). So, what's the alternative? "The only way to eliminate the risk is to keep all the detainees locked up forever." Admittedly, he's not suggesting their perpetual imprisonment, as he's not claiming that the "risk" can or should be "eliminated;" but he doesn't mention the other way in which that particular risk could have been eliminated: don't invade the other peoples' countries in the first place. That's one of the possibilities that doesn't occur to us, once we've bought into the war paradigm.
Mr. Chapman offers one of those lesser-of-two-evils alternatives whereby the government could deal with its prisoners: declare them prisoners of war, which would afford them the protection of the Geneva Convention against torture and other abuse. (Of course, that's "protection of the Geneva Convention" as in: How many divisions does the Geneva Convention have?) The trouble is, that allows them to be imprisoned, as Mr. Chapman says, "until the hostilities cease." What hostilities is he talking about? If he means guerilla resistance to occupation: well, that will never end. If he means "the Iraq war:" that's something that never was (under the Constitution, a "war" is something declared by the Congress, which hasn't happened since 1941), or it ended in 2003, pretty much when Supreme Commander Mission Accomplished said it did -- when there certainly was no functioning Iraqi regime (except for our puppets), and there was no organized military resistance (and, really, there never was any of that, to speak of). If he means "the Global War on Terror" ... awwww, what the hell, words fail me. Maybe he's thinking of the War on Drugs. I hope so; that seems to be the only war that the LP types generally and consistently oppose. And rightly so -- it's just a shame that they can't see the parallels with all the other wars.
To paraphrase Paul Simon: Any way you look at it, we're screwed.