And Justice For Some

President Barack Obama’s order to close the Guantanamo Bay prison highlights one of the Bush administration’s few successes - the campaign to undermine America’s belief in the rule of law.

The propaganda effort over Guantanamo detainees continued to the end of the Bush administration. The Pentagon claimed on January 13 that 61 former Guantanamo detainees had “returned to the fight.” On MSNBC’s Rachel Maddow Show, Seton Hall Law School Professor Mark Denbeaux challenged the dozens of contradictory Pentagon estimates. Such figures, Denbeaux asserts, are offered without identities or purported terrorist activities to support Pentagon claims, and include several ex-detainees who appeared in a documentary about Guantanamo and others whose lawyer criticized their detentions in print.

Overlaying debate over whether torturing prisoners is acceptable American behavior, discussion of closing Guantanamo focuses on what to do with the remaining 245 Guantanamo detainees. Public debate boils down to “we can’t try them (especially not on U.S. soil), but we can’t let them go either.”

The Bush administration’s efforts since 9/11 have managed to convince a cross-section of Americans that the rule of law is situational, a privilege for Us but not for Them - specifically, that “innocent until proven guilty” should not apply to anyone held at Guantanamo for any reason. They are guilty by reason of imprisonment. No adjudication necessary.

Sunday on Meet the Press, Rep. John Boehner (R-OH) repeated the Pentagon's "back on the battlefield" claims and cautioned, “We have to remember, these are terrorists who, who have attempted to kill Americans.” No evidence necessary, either.

On Friday, WorldNetDaily’s Melanie Morgan was “reeling in horror at the potential danger to every single man, woman and child in this country” if Guantanamo is closed, “bringing killers, rapists and thugs to federal prisons on American soil.” Quoting the Pentagon’s changing “returned to the fight” statistic, Morgan warned that the “ruthless, soulless … scum of Gitmo” must not be allowed trials in U.S. courts, which would “put civilians at risk.”

Also Friday, callers to the progressive Bill Press Show debated the Guantanamo closing, some insisting that Guantanamo detainees were too dangerous to transfer to U.S. soil. Press insisted that some are held there with no evidence they were ever involved with terrorism – other than their detention at Guantanamo. One caller argued that if released, Guantanamo detainees would pursue killing Americans.

Press pushed back, “Put them in Leavenworth. Put them in San Quentin.” Mass murderer, Charles Manson, has been jailed safely for decades, he argued. The caller nonetheless insisted that people who fly airplanes into buildings are fundamentally different and too dangerous to hold on American soil.

Or to face American justice. So much for belief in the rule of law.

Last week, the press reported that Said Ali al-Shihri, a former Guantanamo detainee released to Saudi Arabia, had gone to Yemen to become a top deputy in al-Qaida’s branch there. He is sure to be cited as an argument for indefinite detention and preserving the prison at Guantanamo. One of hundreds of prisoners already released by the Bush administration without trial, al-Shihri is not proof that justice failed, but that it was never tried.

But such risk exists in every suspect released for insufficient evidence or after acquittal by juries. Sometimes the guilty go free. Sometimes the innocent are convicted. We trust our justice system to work most of the time, and accept the inherent risks. Or we did until blinded by fear and by fear mongers.

America routinely releases violent prisoners – Morgan’s killers, rapists and thugs – who have completed their prison sentences. That is the point of sentencing rules: to assign prison time for the properly adjudicated and duly convicted, then release them once their sentences have been served.

Might they commit other violent crimes after release? Yes. No. Maybe. It doesn’t matter. Unlike despotic regimes, unless their sentence is life without parole, the American system of justice does not imprison people indefinitely because of what others fear they might do if released. That’s the system, warts and all.

Referring to the 1993 World Trade Center bombing, Glenn Greenwald last week defended that system, the one Bill Clinton used to successfully prosecute and imprison the perpetrators:

Clinton kept us safe, for the rest of his presidency...

Therefore, using the reasoning of Bush followers everywhere, this means that Clinton's counter-terrorism policies -- i.e.: trying accused Terrorists in civilian courts and incarcerating them in U.S. prisons -- have been proven to be extremely effective in keeping us safe...

But letting “the other” face a justice system based upon “innocent until proven guilty” is what the Boehners and the Morgans fear most, a fear they hope to instill in others, and have with unnerving success. Just remember, the next time they place their hands over their hearts and pledge their allegiance to an American republic with “justice for all,” they don’t really mean it.

Views expressed on this page are those of the authors and not necessarily those of Campaign for America's Future or Institute for America's Future