To Favor Due Process Is to Favor Terrorists' Rights

The Associated Press has an article today discussing the closing of Guantanamo and what type of proceedings should be established for the remaining detainees to determine their guilt or innocence. This was the headline AP chose, one that, as is typically the case, was then repeated in newspapers and on news websites around the country:

The same manipulative, Orwellian slogan adopted today by AP -- "terrorists' rights" -- is what Bush followers have used for years to justify their extremist torture, surveillance and detention policies and to demonize anyone who opposed those policies as being "soft on Terrorism" or even "pro-Terrorist." Here, for instance, was the headline of a 2004 Op-Ed by John Yoo in the Wall St. Journal, arguing that the U.S. had no obligation to abide by the Geneva Conventions in its treatment of Guantanamo detainees (a position which the U.S. Supreme Court, two years later, emphatically rejected in Hamdan):

As it turned out, of course, hundreds of the detainees imprisoned at Guantanamo when that 2004 Op-Ed was published -- ones which most of the country was calling "Terrorists" -- weren't "Terrorists" at all. They were guilty of absolutely nothing. In fact, the Bush administration subsequently acknowledged as much by eventually releasing hundreds of them -- after they had been put in cages for years with no trial of any kind. There still continues to be grave doubts about the guilt of many of the remaining detainees, including ones that have been there for years and are probably irrevocably broken as human beings.

In fact, just two months ago, a right-wing, Bush-43-appointed federal Judge ordered five detainees released on the ground that there was never any "credible evidence" to justify their detention. Despite that, they had been imprisoned in Guantanamo for six years and were subjected to barbaric treatment that drove several of them close to insanity. They were released only after this judicial exoneration as part of a habeas corpus hearing in a federal court -- exactly the kind of hearing which the 2006 U.S. Congress, when it enacted the Military Commissions Act (with the support of most of the Washington Establishment), voted to abolish (an act that was declared unconstitutional by the Supreme Court in its 2008 Boumediene decision, which restored habeas rights). Advocates of the Military Commissions Act, and those who now want to deny normal due process to accused Terrorists, argued then and still argue now the AP/Yoo line: Terrorists have no rights.

It's not really "complex" to understand this: the fact that the U.S. Government accuses someone of X does not mean that they are actually guilty of X. That's true even where "X = Terrorist." That's why, in America, we have these things called "trials" and "due process." Sometimes the Government is wrong. Sometimes it is inept. Sometimes it is corrupt and tyrannical. Therefore, these things we call "checks" are necessary before we assume that Government accusations are true and before we allow the Government to put people into cages for life. We don't actually know that someone is a "Terrorist" until a trial, with due process, establishes that the Government's accusations are true.

Is that such a difficult concept to understand? This isn't actually a new or exotic idea for the United States. It's actually about as fundamental to the American founding as an idea can get. Thomas Jefferson articulated it pretty clearly in a 1789 letter to Thomas Paine: "I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

It's a good thing that there was no Associated Press around (let alone Wall St. Journals and John Yoos) during debates over the Fourth, Fifth, Sixth and Eight Amendments. AP would have run articles describing the proposed guarantees of Due Process and prohibitions on Cruel and Unusual Punishment as "Murderers' rights." John Yoo would have written Op-Eds arguing that "Child Molesters Have No Rights" and the Journal would have run Editorials accusing advocates of those safeguards as being "Soft on Crime" and "pro-Rapist."

As today's AP article demonstrates, these debates aren't obsolete bygones of the Bush era. The Obama Executive Orders of last week left unresolved the question of what due process (if any) will be accorded Guantanamo detainees and, to a lesser extent, what interrogation techniques will be approved for them. The same people who cheered on the radical policies of the last eight years are now pressuring Obama to fill in those gaps by continuing the same policies, just in a different place and with a different name (something for which the media, virtually in unison, is openly yearning). And as the Yoo-mimicking headline from AP demonstrates, the same twisted Orwellian reasoning used to justify those policies -- "Terrorists' Rights" -- hasn't gone anywhere.