Commenting on the case of Abdullah Mujahid – a pro-American Afghan sent to Guantanamo by mistake – Kevin Drum throws in this aside:
Plenty of the inmates at Guantánamo are genuinely dangerous people, and we can hardly afford to let them go free just because we don’t have Perry Mason standards of evidence against them.
Drum is rightly determined to evade the GOP smear that “Democrats are soft on terrorism”. But he goes the wrong way about it.
It is logically possible that:
A. Some of the GITMO prisoners are dangerous people.
B. None of the GITMO prisoners are dangerous people.
Should we believe A or B or suspend judgment?
What does “dangerous” mean? Let us follow George Bush’s own definition. In his Vienna press conference he said:
There are some who need to be tried in U.S. courts. They’re cold-blooded killers. They will murder somebody if they’re let out on the street. … I’m not going to let people out on the street that will do you harm.
Translating “cold-blooded killers”, I get something like “persons against whom there are solid grounds, not necessarily amounting to certainty but much more than mere suspicion, for believing them to be participants in crimes of terrorism”; we define “terrorism” as “commission or active planning of deadly violence against civilians for political purposes”. Now Iraqi insurgents who target American soldiers with roadside bombs, and war criminals who execute American prisoners, are enemies all right; and something has to be done about people against whom there is only suspicion of membership in a terrorist network – they should be tracked day and night. It’s also true that in irregular warfare, it’s often necessary to intern prisoners and even civilians for the duration of hostilities in the theatre (not a never-ending “war”). It is simply that the extreme violations in GITMO and Bagram of the due process that is routinely granted to organised crime leaders, genocidal politicians, fascist torturers and serial killers cannot possibly be justified for anything less than evidence of real terrorism.
The evidence for proposition A consists of
(1) unsupported assertions of President Bush and his senior officials;
(2) trials in Spain and France on terrorist-association charges of seven ex-GITMO prisoners (those returned to Britain, Denmark and Sweden were, according to this source, released without charges, and without evil consequences to date).
The circumstantial evidence for proposition B is that
(1) a number of persons detained for long periods and then released without charge, for example in Britain, appear not to be dangerous in our sense;
(2) no GITMO detainee has, so far as I know, been brought to trial in the US in a “regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples” (Geneva Conventions Common Article 3), i.e. a civilian court or a UCMJ court martial or an ad hoc tribumal modeled on one; this failure indicates a systematic lack of the evidence required to convict in such courts;
(3) there are numerous reports that confessions have been extracted by torture and other mistreatment, evidence which has no value in common sense, let alone law, but is (we understand) used to justify continued detention;
(4) President Bush and his senior officials have a very strong incentive to conceal the facts about Guantanamo and Bagram as long as possible, not only for political advantage, but to prevent and delay future prosecutions for war crime, especially if B is true.
The evidence for B is suggestive not probative. The evidence for A is worthless, except for the French and Spanish trials. We should therefore suspend judgment until the evidence is investigated by people we can trust.
Americans have no choice but to buy a used dirty war from this man. They do not have to buy the sales pitch.
Update PS: good thread at TPMcafé on a post by Juliette Kayyem on how Democrats should react to Hamdan. Most commenters are for running principled not scared.