Detention & Guantanamo

The New York Times Declares Al Qaeda Membership Legitimate Political Activity

By Benjamin Wittes
Sunday, April 28, 2013, 12:00 PM

I was away when the New York Times ran its latest editorial related to national security legal issues, so I’m afraid I did not fly-speck “The Guantanamo Stain” for factual errors.  No matter. It doesn’t really contain many factual errors in the sense of factually-false statements of the type I normally note.

It does, however, contain one outrageous statement, which I don’t want to let pass. I can't read the following passage as meaning anything other than that Al Qaeda membership is a legitimate form of political activity:

But whatever Mr. Bush says about how comfortable he is with his “tough” choices, the country must recognize the steep price being paid for what is essentially a political prison. Just as hunger strikes at the infamous Maze Prison in Northern Ireland indelibly stained Britain’s human rights record, so Guantánamo stains America’s. (emphasis added)

“For what is essentially a political prison.” There are a lot of ways to describe Guantanamo and the people held there, and there are a lot of ways to critique American policy in maintaining the facility. “Political prison” should not be one of them.

The use of this term inevitably suggests that the detainees at Guantanamo are "political prisoners," which in turn connotes prisoners of conscience, people held as a result of their legitimate political activity. Is that what the New York Times contends is going on at Guantanamo?

Let us review the facts, shall we? The folks at Guantanamo are held there on grounds that they are “part of” enemy forces in an armed conflict authorized by Congress. For years, the Times and others insisted that judicial review of these judgments was necessary with respect to every single detainee who sought it---and that detention was illegitimate without it. They won on this point; every single detainee who has sought judicial review has now received it, so while there remains a small number of detainees still at the facility because effectuating release orders has proven (so far) impossible, there is not one detainee who is still there because of anything other than a finding that he is "part of" Al Qaeda or the Taliban. And there is not one who has lacked access to the courts to litigate whether he is, in fact, a functional part of enemy forces. So let’s just be clear about what the New York Times is saying when it declares Guantanamo a “political prison”: It is saying that functional membership in Al Qaeda and the Taliban is a legitimate form of political activity that should not---even with judicial review---give rise to incarceration.