An absolute must listen for anyone remotely interested in the situation revolving around the detainment of foreign nationals at Guantanamo Bay is a recent episode of This American Life by Chicago Public Radio entitled, "Habeas Schmabeas" (h/t Ministry of Love). Chicago Public Radio said, "It's a show about Guantanamo Bay and what it meant for prisoners there to be denied the right of habeas corpus. We also tried to explain in a way that wasn't crushingly boring what habeas corpus actually means, why it's so fundamental in American law, and how dangerous it is for everyone when it begins to erode." They succeeded in explaining the overall details of the situation, including the legal mumbo-jumbo, without the program losing visceral momentum.
You can download the radio program here: HabeasSchmabeas310.mp3 (29399.5K)
Or if you prefer to read, you can download a transcript of the show here: americanlife.pdf (266.2K)
Here is an excerpt from the show:
We’re told over and over that these prisoners are so terrible, that we need an offshore facility, away from U.S. laws, to hold them. But then there’s Badr, and every day more stories like his are coming out. And they raised the question: Is Guantanamo a campful of terrorists, or a campful of mistakes? In a new study by Seton Hall’s law school, researchers simply went to the trouble of reading the 517 Guantanamo case files released by the Pentagon. Here’s what they found:
Only 5% of our detainees at Guantanamo were “scooped up” by American troops, on the battlefield or anywhere else. Five percent. The rest? We never saw them fighting.
And here’s something else: Only 8% of the detainees in Guantanamo are classified by the Pentagon as Al Qaeda fighters. In fact, Michael Donleavy, head of interrogations at Guantanamo, complained in 2002 that he was receiving too many “Mickey Mouse” prisoners.
In 2004, the New York Times did a huge investigation, interviewing dozens of high level military intelligence and law enforcement officials in the US, Europe and the Middle East. There was a surprising consensus: that out of nearly 600 men at Guantanamo, the number who could give us useful information about Al Qaeda was “only a relative handful.” Some put the number at about a dozen. Others more than two dozen. The Seton Hall study might help explain that; it revealed that 86% of the detainees were handed over to us by Pakistan or the Northern Alliance. And some were handed over to us by a new method...
Here is another excerpt:
We all know this is a new war with new rules. But what were the old rules? Well, one had to do with POWs. The military has always known that all kinds of prisoners get picked up in the fog of war, so it was important to get those numbers down to just the real POWs, since troops on the move didn’t want to be burdened with looking after lots and lots of captives. This problem had been more or less solved by the old Geneva Conventions, which required a “competent tribunal.” It sounds crazy, a kind of impromptu court hearing right after a battle, but that is exactly what used to happen. And typically, some 75-90% of the people “scooped up” would be sent home.
In the Gulf War of 1991, we captured 982 people, released 750 of them right away, and the remainder were POWs. Like in the old war movies, they gave name, rank and serial number, and they got certain things: everything from a pledge they wouldn’t be tortured, to a promise they’d be released once the war ended, and even the right to send letters home. But this is a new kind of war, after all, and the administration made the argument that the Geneva Conventions apply only when you’re fighting another country – a country with a uniformed army. Not when you’re fighting terrorists.
And one final excerpt:
Finally, in 2004, the United States Supreme Court stepped in. It said if prisoners aren’t going to be covered by the Geneva Conventions, that’s fine. But they couldn’t be allowed to fall into a legal black hole, not protected by any law at all. They had to be given some way to challenge their detainment. It’s one of the oldest rights in western civilization, known as habeas corpus.
Habeas corpus – it’s a phrase we all know, but let’s be honest. Can anyone really remember what it means? It’s not a trial, or anything like one. It’s more, well, primal. It’s a hearing that commands the executive, in this case the president, to explain why he has jailed somebody. The idea dates back to 1215 England when the nobles forced King John to sign the Magna Carta and agree to the Great Writ, later known as habeas corpus. In Latin, it means “show me the body.” In other words, a neutral judge would have to see the prisoner in person to check if he’d been tortured. And then the judge had the power to require the king to explain “Why is this guy jailed?” All the executive had to do was answer with a convincing story, and then the guy went back to the dungeon. It’s a right so elemental that it’s in Article One of the U.S. Constitution. It’s one of the reasons we fought the Revolutionary War.
Check it out! This is good stuff!
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