The Law Gets a Toehold

By BOB HERBERT

Could it be? Will the Bush administration, under pressure from the Supreme Court, actually make an attempt to emerge from the Middle Ages? Is the post-9/11 American Inquisition beginning to come undone?

Here’s the way it has been. The administration has rounded up people at various points on the globe and dumped them like animals (sometimes literally in cages) at the U.S. prison in Guantánamo Bay, Cuba. Top officials have insisted not only that these were terrorists, but that they were, as Donald Rumsfeld loudly proclaimed, the “worst of the worst.”

Dick Cheney told Fox News: “They are very dangerous. They are devoted to killing millions of Americans, innocent Americans, if they can.”

In the administration’s view, these prisoners had no rights. They could be kept in a state of permanent degradation. They had no right to a lawyer, or even to see the evidence against them. They could be sentenced to life in prison or even death in what could only be called a kangaroo court.

The entire system was rigged. Hearsay evidence would be allowed. Witnesses could be concealed. Information obtained through abuse and even torture could be used.

The Center for Constitutional Rights, in a new report documenting myriad abuses at Guantánamo, noted that a prisoner named Hadj Boudella was told by military intelligence officers: “You are in a place where there is no law. We are the law.”

Lawyers from the center, a public-interest organization in New York, have fought long and heroically to bring even the most minimal legal protections to the prisoners. Along the way it was learned that the inmates at Guantánamo were far from the worst of the worst. Many of them, it turned out, were no danger to the United States at all.

In an article in January 2005, The Wall Street Journal said, “Commanders now estimate that up to 40 percent of the 549 current detainees probably pose no threat and possess no significant information.”

The center’s report quotes one general as saying, in the fall of 2004, that the majority of the Guantánamo detainees “will either be released or transferred back to their own countries.” Another general said simply, “Sometimes we just don’t get the right folks.”

Not only were the legal rights of the prisoners at Guantánamo dispensed with, but their basic human rights were trampled. Prisoners were beaten, sexually humiliated, denied essential medical treatment, deprived of sleep for days and weeks at a time, held in solitary confinement for periods exceeding a year, and tortured.

The courts, in large part because of the efforts of the center, have slowed the administration’s descent into barbarism at Guantánamo. In June 2004, in a case brought by the center, the Supreme Court ruled that prisoners at Guantánamo had the right to challenge the legal and factual basis of their detention in U.S. courts.

Two weeks ago, in another landmark ruling, Hamdan v. Rumsfeld, the court declared that the Guantánamo detainees were covered by a provision of the Geneva Conventions known as Common Article 3. It prohibits cruel and inhumane treatment and requires that prisoners receive “all the judicial guarantees which are recognized as indispensable by civilized people.”

The word “civilized” drew blank stares from baffled Bush administration staffers, who had to run to their dictionaries to see what it meant.

“The opinion in Hamdan is really historic,” said Bill Goodman, the center’s legal director. “On the one hand, it tells the executive branch that it will not be free to act as it chooses, which means to act lawlessly. At the same time, it acknowledges as part of American law certain international minimums of decency, morality and ethics, and those are encompassed in Common Article 3.”

Ordinary Americans have been largely indifferent to the plight of the prisoners at Guantánamo, believing for the most part that they were terrorists and therefore deserving of whatever terrible things might be happening to them.

I asked Mr. Goodman why Americans should care about the treatment of the detainees.

He said: “It’s important for the American people to know that this has been done in their name so that they can disavow it, disclaim it. We have to hold ourselves up to a mirror. We have to see what we have done. And at that point, we have to say, ‘Oh my god, we can’t do this anymore.’ ”