I want to speak on an unpopular cause -- the prisoners at Guantanamo Bay, Cuba.
Please hear me out. In the sorrow and rage after Sept. 11, what we did to Afghanistan captives was perhaps excusable.
Two years on, we should think again. We do not honor the dead of Sept. 11 by dishonoring ourselves. We dishonor ourselves if we forget what our Founders knew and act as tyrannically as their oppressor.
Our leaders are finalizing plans to put al-Qaida suspects on military trial at Guantanamo Bay.
For many, the outcome of a trial is a matter of life and death. In these trials:
• the presiding officer may admit any evidence he or she thinks will convince a "reasonable person," including hearsay evidence;
• evidence may be admitted by telephone, or from persons using a false name;
• the court may remove defense attorneys at any time;
• the Department of Defense may remove judges without explanation.
In our name, the Department of Defense has set aside the due process of law that civilized nations give the most heinous defendants. The Guantanamo captives have no rights and no status in international law. They cannot choose their own counsel, nor meet attorneys without conversations being recorded. They cannot question witnesses who shelter behind false names, must trust their lives to attorneys subject to arbitrary appointment and removal, and can be convicted by hearsay.
We, the people of the United States, should suspend the progress toward military trials and rethink our treatment of such detainees. We should remember what our Founders knew from bitter experience: that no governing power can be trusted if not counterbalanced and held accountable. Our Constitution was drafted specifically to prevent any arm of government from exercising unaccountable power. In the Declaration of Independence, our Founders condemned the British king, George III, for his unjust, abusive and tyrannical acts. They savaged the King's use of "mock trials" to protect his troops, his suspension of trial by jury, and his "transporting us beyond Seas to be tried for pretended offences."
What we are doing at Guantanamo is uncomfortably close to what the Declaration condemns. In our name, the Department of Defense wields absolute power over the captives. Everything is done in secret, using legal rules that would cause outrage if anyone used them against Americans.
Our Founders proceeded from a universal claim, that all human beings are created equal and have rights valid everywhere. To establish those rights in our nation, they framed the Constitution. Though the Constitution restricts some legal rights in wartime, Amendment Six is unequivocal: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." There shall be "an impartial jury." The accused has the right to be "confronted with the witnesses against him" (thus being able to question them), and to "have compulsory process for obtaining witnesses in his favor."
We can interpret these provisions as for us alone, and to hell with foreigners, or as a model for all human government, which we therefore follow. I submit that if we treat the Constitution selfishly, and refuse its legal protection to non-Americans, we contradict its spirit and intent.
Admittedly, some kinds of terrorism are hard to deal with by "conventional" means. At the very least, however, we should suspend the progress toward secret trials and re-classify the post-Sept. 11 detainees as prisoners of war.
Though it may be less easy to convict, our actions will be more public and more accountable. And we won't be contradicting our Constitution and shaming ourselves in the process.
At present, the Guantanamo process is literally a dead end. If we go ahead as planned, trials will be held, and some verdicts will bring a death sentence. Where will the prisoner be executed? Guantanamo Bay. In the eyes of the world, it will become a death camp.
I do not envy the judge who in our name may pronounce a sentence of death after one such trial.
Brian A. Wren is on the Faculty at Columbia Theological Seminary in Decatur. He became an American citizen in July 2000.
© 2003 The Atlanta Journal-Constitution