We have a very difficult situation. You can not base the legal system at Guantanamo on a traditional state-to-state war. There is not going to be any peace treaty when this war ends, since it is probably going to go on for decades. Therefore, the question is whether to keep people in detention without an effective hearing for a substantial length of time or whether we should expect some methodology and habeas rights where they could petition for relief from detention.
Some people say ‘No, no prisoner of war has ever been released before the war is over.’ And this is what the Supreme Court is grappling with right now. But it begs the question; can you detain somebody indefinitely without recourse for decades?
At the hearing yesterday, Professor Denbeaux looked at Defense Department statistics on detainees at, and released from, Guantanamo and found them to be very deceptive. I intend to check that out. In addition, Admiral Hutson clearly said that waterboarding is torture.
Guantanamo only serves to reduce the credibility of America. The only way to settle questions about Guantanamo and the adequacy of the legal rights being afforded there is to have both sides to be able to make statements, to be able to ask questions based on those statements, and to be able to figure out what is truth. Unfortunately, the Defense Department’s decision to order Col. Morris Davis not to testify is typical of how this Administration behaves.
This is what we saw with the firings of US Attorneys — nobody would answer questions, and nobody would let us know anything. But eventually, it will become common knowledge. That is the bottom-line point about Guantanamo. Everything that inmates or detainees suffer in Guantanamo will one day become public, one way or the other. Whether they are released or they die, many of their experiences will become public at some point. And that is why it is extraordinarily important how the United States conducts itself.