Is Permanently Detaining Foreign Nationals Without Any Due Process The New Norm?

...the new Guantanamo policy is virtually identical to the Bush administration’s discredited policy of secret review by mysterious people in a hidden location with no rules of evidence or meaningful standards of review.

By Lt. Col. Barry Wingard

Long ago, individuals from around the world came to America to escape kings and monarchs that had the power to treat people with utter distain, sending their children to wars on a whim, and imprisoning people without charge or judicial review, sometimes for life.  For many, the behavior of these rulers became so intolerable that abandoning one’s home, friends, and family became preferable to continued suffering in lands where individual libery counted for nothing.


Today the United States finds itself in three official “conflicts” (Iraq, Afghanistan, and Libya), as well as several more unofficial “actions.”  As usual, our involvement is based upon faulty intelligence and lack of insight, driven by planners who still believe defeating an enemy army and throwing a nation into chaos will somehow make the world a better place.  In the Libyan conflict, for example, we seem to have little idea who we are supporting or what we will do once Colonel Gaddafi is eliminated.  Nonetheless, with the force of the United States behind them, these mysterious rebels may soon find themselves defining the course of Libya’s future.

So, what can our new desert rebel allies learn from America?  As evidenced by the United States’ close relationship with Saudi Arabia, Bahrain, and Yemen, the lesson has almost nothing to do with democracy.  In fact, so long as they remain friendly and helpful to the United States, their actual form of government (or treatment of their people) won’t really matter.

Perhaps our desert rebel allies will learn to establish a powerful executive branch, unchecked by legislative or judicial branches.  Or perhaps they will learn to conceal any information they find embarrassing, simply by declaring it a threat to national security.  These are certainly lessons the United States could teach by example.

Almost certainly, if they follow our example, our rebel allies will learn that mistreatment and permanently detaining foreign nationals without any form of due process is the new norm.  After all, at Guantanamo Bay, the United States is, even now, holding men in cages where they will likely stay for the rest of their lives, while inexperienced “new bosses” reinstate the ill-advised and inhumane policies of years past.  Meanwhile, the American public remains pleasantly disengaged, safe in their belief that, as citizens, such terrible treatment could never be visited upon them.

Recently, major newspapers reported President Obama had signed an executive order granting “more rights” to Guantanamo detainees.  Unfortunately, while the President did, in fact, sign an executive order, the new Guantanamo policy is virtually identical to the Bush administration’s discredited policy of secret review by mysterious people in a hidden location with no rules of evidence or meaningful standards of review.   Perhaps our rebel allies will learn not to bother devising new policies if they can simply repackage policies that have failed in the past?

Indefinite detention is the New-American notion that courts, trials, and evidence are antiquated concepts when viewed in the context of national security.  If the executive branch suspects you might be dangerous, you are condemned to life in a cage.  At the same time, the senior official overseeing America’s “military commissions” has issued a 26-page “protective order,” ensuring no lawyer (military or civilian) can establish or maintain a meaningful attorney-client relationship with those caged in Guantanamo.  After all, such relationships might lead to challenges against the legitimacy of imprisonment without trial.  And we wouldn’t want that.

Just think, if our new allies in Libya follow our lead, they may one day demonstrate what they have learned against us.  If so, we should take a moment to apologize to our children for the legacy they will endure, the very same legacy our ancestors tried so hard to protect us against.  Unfortunately, this time there will be no ship setting sail for a better life.

This article originally appeared in The Public Record on March 29, 2011. The views expressed in this article do not represent the views of the Department of Defense or the United States government. Lt. Col. Wingard is a military lawyer who represents Fayiz al-Kandari and has served for 26 years in the military. When not on active duty, he is a public defender in the city of Pittsburgh.