Crime (?) and Punishment-A Comparative Study

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Crime (?) and Punishment-A Comparative Study

President Obama and First Lady Michelle Obama, joined by the new King Salman of Saudi Arabia, shake hands with members of the Saudi Royal Family at the Erqa Royal Palace in Riyadh, Saudi Arabia. (Photo: State Department)

Avoid self righteousness like the devil-nothing so self blinding.
— Basil Henry Liddell Hart, Advice to Statesmen

When we see how uncivilized the behavior of some of our closest allies in the world can be, it is good to reflect how fortunate we are to live where we live, the words of most of the Republican candidates for the presidency notwithstanding. It all came to mind when reading the descriptions of how Saudi Arabia, one of our closest allies in the Middle East, celebrated the advent of 2016 by conducting the mass execution of 47 people, including the popular Shiite cleric, Sheikh Nimir al-Nimr. It was a good way for the Saudis to welcome in 2016 since 2015 had proved to be a banner year for the executioners in Saudi Arabia. In that year Saudi Arabia executed 158 people forcing the Saudi government to begin running ads seeking 8 additional executioners. The ads said applicants needed no special qualifications. For a country with a population of only 28.3 million the execution of 158 people was quite an achievement. (To put this in some context, the United States with a population of 320 million people only executed 27 people in 2015.)

The world was understandably outraged at the Saudi executions and no country more so than the United States since Saudi Arabia is one of our best friends in that part of the world even if it doesn’t let women drive or do lots of other things women in the United States get to do. We are appalled when Saudi actions suggest a total disregard of what we take to be basic human rights. We are appalled, but reassured, because we know that what happened in Saudi Arabia could never happen under the United States form of government because of all the Constitutional protections that are in place to protect those who fall under the jurisdiction of our government. Of course, the comfort we take in knowing that has to be somewhat tempered by what is taking place in Guantánamo, the military prison camp in Cuba run by the United States government. Not that that has anything to do with Saudi Arabia or with the execution of 47 people in Saudi Arabia with what some would describe as the complete absence of due process of law.

Guantánamo offers a stark contrast to how we deal with people believed to have engaged in activities perceived, if not proved, to be against the best interests of the United States. It would not occur to us to summarily execute them as Saudi Arabia did the unfortunate 47. Instead we permit them to live happily ever after in facilities furnished by the U.S. Government without charging them (a) for room and board or (b) with any acts of misconduct. As of the first of the year the United States has magnanimously spent, without hope of reimbursement, $5.2 billion in order to enable the people at Guantánamo to reside there. Many of the residents of Guantánamo continue to live there even though they have been cleared for release. As of this writing there are men in confinement, 44 of whom have been cleared for release. Fifty-two of the men confined have never been charged with any crimes and some of them have been in residence since 2002. They have been given the cutesy names of “forever prisoners” since they have no prospect of being charged with any criminal conduct nor of ever being released. Being one of the “forever prisoners” at Guantánamo is, of course, better than being one of the 47 former prisoners in Saudi Arabia because a “forever prisoner” is still alive whereas the former prisoners are all dead. Some of the “forever prisoners” may not, however, continue to enjoy the benefits of this distinction. One of them is Tariq Ba Odah, a Yemini prisoner. He has been cleared for release for 7 years but is still imprisoned. He has been on a hunger strike for 9 years and is now severely malnourished. He is at death’s, but not the prison’s, door. That is because a country that has tentatively agreed to accept him wants to review his medical records before doing so. The Pentagon has reportedly been slow to hand them over on the grounds that it is protecting Mr. Odah’s right to privacy. The Pentagon places the right to privacy above the right to life and liberty. Mr. Odah probably doesn’t get the difference. He probably never will. That is because he may be dead before it is explained to him. Other “forever prisoners” may also find it hard to understand why they are better off in Guantánamo than dead. Someone in Congress, the Department of Defense, or the White House can explain it to them. They are the ones responsible for the fact that the “forever prisoners” continue to enjoy their privileged status.

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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