This week, five Britons flew home from a brig at the U.S. naval base at Guantanamo Bay, Cuba. It was not a joyful homecoming.
Four of the five were immediately slapped into a British jail. The fifth - Jamal al-Harith - went home, but a friend said the 37-year-old could face serious mental problems after losing two years of his life. Al-Harith's lawyer vowed to make U.S. authorities "answer for the injustice he has suffered."
The reshuffling of prisoners at Guantanamo comes as U.S. officials scramble to justify to the highest court of the land the continued, indefinite detention without charge and in virtual isolation of more than 600 other "unlawful combatants."
The Supreme Court has scheduled arguments April 20.
Dozens of these "enemies" - including three boys under the age of 16 - turn out not be enemies at all. More than 100 have been released or transferred to friendly countries. Many of those maneuvers have come since November, when the Supreme Court shocked U.S. officials by agreeing to examine whether the White House and Pentagon overstepped in failing to let Guantanamo detainees challenge their detention in U.S. courts.
Since then, Pentagon officials also have worked harder to justify the detention of the rest. They've listed specific charges against a bunch of anonymous detainees allegedly involved in al-Qaida murder plots and training.
Last month, two ex-bodyguards of Osama bin Laden's were formally charged and await trial by a special U.S. military commission. Four other detainees segregated for trial haven't yet been charged, as their home countries negotiate ground rules for the trials.
That's one way to apply differential justice. Another is when the captured "enemy combatant" is a middle-class American.
John Walker Lindh, the "American Taliban," was allowed to plea bargain in U.S. court and to consult with lawyers and his family - even though he committed the very same crimes enumerated against anonymous others at Gitmo, including consorting with bin Laden, taking up arms and being captured on the battlefield in Afghanistan. Lindh was even present when a CIA agent was murdered, yet did nothing to warn his fellow American of the dangers.
Such justice only for some undercuts the whole process.
Yet Guantanamo isn't about justice at all. Like money launderers, Pentagon officials have found an offshore haven where men and boys can be questioned away from prying eyes and legal advice, in a clear affront to the laws of war this nation helped draft.
To justify this miscarriage, U.S. officials have skated on the very thin ice of a 1950 precedent that allowed a U.S. military commission in China to try German prisoners.
On that basis, this nation has subjected the citizens of 42 countries to more than two years' detention and interrogation, deprived of contact with kith and kin.
As of last August, the Pentagon had recorded 31 suicide attempts at Guantanamo, none successful. A California appellate court, in ruling the detentions unlawful in December, cited reported conditions that include "linguistic isolation" and being allowed "only one one-minute shower per week."
The fact that this war is a unique war with ruthless adversaries who continue to plot against us does not give the Pentagon carte blanche to hold criminal suspects, terrorism kingpins or simple combatants incommunicado endlessly while they are interrogated, intimidated and milked for what they might know. The basic legal rights embodied in the Constitution and the Geneva Conventions should still apply, and so should common sense.
Sullivan is The Plain Dealer's foreign-affairs columnist and an associate editor of the editorial pages.
© 2004 The Plain Dealer