No Justice Forever: America’s New Foreign Policy of Indefinite Detention

Guantanamo detainee Fayiz al-Kandari

As evidenced by the recent outpouring of generous support for the people of Haiti, America remains a caring and compassionate nation. But when it comes to human rights and the rule of law, the United States falls woefully short, trailing behind the rest of the civilized world. Case in point, the U.S. government is seriously considering indefinite detentions for some Guantanamo detainees.

Sen. Lindsey Graham (R-SC) said last weekend that the White House may support a new law that would allow the indefinite detention of some terrorism suspects. Meanwhile, last month the Guantanamo Detainee Review Panel finally recommended which detainees should be released and which ones should face trials. It came as little surprise that more than 100 detainees were cleared for release while about 35 will be tried either by federal court or military commission. Yet surprisingly, approximately 50 detainees have been recommended for indefinite detention without trial. The administration claims they are considered too dangerous to be released but too difficult to prosecute even in the conviction-friendly Commission System.

These 50 detainees present a perplexing situation for the United States. The United States prides itself on being a world leader on human rights and the rule of law, and has been consistently outspoken in its criticism of human rights abuses by other nations. But in its zeal to demonstrate a “tough on terrorism” stance, the United States has failed to live up to these values.

One of the hallmarks of the American judicial system is the presumption of innocence. If arrested for an alleged crime, we have the right to a trial, to confront our accusers, and to present evidence in our defense. Indefinite detention bypasses these rights, short circuits due process, and turns the presumption of innocence on its head. In short, it presumes guilt and offers no remedy to challenge that presumption.

It is tempting to assume the decision to hold detainees indefinitely is based on a review of credible evidence. But if the evidence is so persuasive, why not introduce it in a court of law and secure a legitimate conviction? Time and again, federal courts have proven fully capable of handling terrorism cases. In fact, the Bush administration successfully prosecuted at least 319 terrorism or terrorism-related cases in civilian courts.

If the evidence is not reviewed by a court of law, who does review the evidence and determine the fates of individual suspects? The evidence is classified and the identities of those making the determinations are closely guarded. This process is entirely secret and inherently un-American. A system that authorizes indefinite detention based on secret evidence can only result in distrust and suspicion.

I represent Fayiz al-Kandari, a Kuwaiti citizen who has been imprisoned at Guantanamo Bay for more than eight years without a trial. In my July 2009 letter to the Washington Post, I explained how every time I visit my client he asks whether I have news of justice for him. Each time, I am forced to answer “I have no justice today.” Assuming Fayiz would someday have his “day in court,” I prepared him for the probability that “justice” would come in the form of a military commission – a second-rate judicial system largely designed to permit rumor as evidence. Unfortunately, I am now left to wonder whether Fayiz will ever be afforded any semblance of justice.

Admittedly, under the laws and customs of war, a nation may detain “enemy combatants” for the duration of an armed conflict. But in an “armed conflict” as ambiguous as the War on Terrorism, can this same standard possibly apply? If so, when can we expect the armed conflict to end? Terrorism dates back to the 14th century or earlier and has been employed throughout history. If the “War on Terrorism” will not end until terrorism no longer exists on Earth, Fayiz will never breathe free.

We are at a key juncture in our nation’s history. We can give in to political expediency and fear, or we can restore the rule of law and uphold our country’s founding principles. Let’s not go down the slippery slope of indefinite detentions.

Lt. Col. Barry Wingard represents Fayiz al-Kandari, a Kuwaiti who has spent seven and a half years in U.S. custody at Guantanamo Bay without trial.

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5 Responses for “No Justice Forever: America’s New Foreign Policy of Indefinite Detention”

  1. Marcy says:

    Pinch me! This can’t be the USA

  2. Social comments and analytics for this post…

    This post was mentioned on Twitter by JasonLeopold: Must read column by my good friend Lt. Col Barry Wingard re: indefinite detentions & rule of law: @Tosfm @GottaLaff…

  3. Dizzy says:

    All the Germans post WWII claimed to have no knowlege, there is still time to make a difference. Stop the excuses and get involved.

    Need a cause? Well here you go, people be denied humanity in your name.

  4. Ian C.Cree,MB(Hons.),MS,FRCS(Eng.& C.),FACS,LRCP. says:

    The idea of indefinite detention without accusation or trial and the torture of prisoners was originated by Dick Cheney and George Bush. Both knew that these acts were highly illegal and defied US law and the Constitution. Guantanamo Bay was chosen as a ruse, since it was not on US soil, and Bush labelled the prisoners “enemy combatants” and not just enemies, believing, or pretending to believe, that this would circumvent the Constitution, US law, and the Geneva Conventions. He proclaimed these beliefs publicly just before Guantanamo Bay prison was opened.
    There was no challenge to this, since the American people were still in a state of shock and awe after the attacks of 9/11. Only after many years were these beliefs declared false and illegal in Federal Court, and the right of prisoners to the writ of Habeas Corpus and their day in Court was acknowledged.
    Some prisoners were tried, found guilty, and remained in prison, while others were declared not guilty and released. However, these practices had already extended to other prisons around the world and many prisoners were secretly transferred and brutally tortured in the program coded “extraordinary rendition”.
    It soon became apparent, when large numbers of prisoners were released, without ever having been accused of any crime, that many innocent men had languished in jail for up to 7 years or more. They had been denied the right to defend themselves, to have the advice of lawyers, to see their families, or be visited by the Red Cross.

    These conditions of abuse became the norm and still continue today, all shrouded in a cloak of secrecy.

    Many of the prisoners had been arrested and imprisoned on the flimsiest of excuses:
    Some had been seen in a group of people, one of whom was THOUGHT to be a terrorist. Some had been accused of being members of Al Qeda by their enemies or competitors. Some were brought in by Bounty Hunters for profit in a military program.
    Others were picked up on the battlefield when US troops invaded Afghanistan and the Taliban were governing the country.

    Tragically this appalling state affairs continues with casual unconcern on the part of our government .

    It is imperative that we all take responsibility for this intolerable state of affairs, and that we lift the roof off the cloak of secrecy. Justice MUST be done and seen to be done. We cannot continue to keep innocent people in prison because they might be terrorists. Every one of us might be a terrorist, and our neighbours could accuse us of that, if we happened to develop a hostile relationship with them!

    We need to try prisoners in the only Courts which can be trusted to be fair – the Federal Courts.
    We need to demand a complete list of all living and deceased prisoners of the USA, where they are located, how long they have been in prison, the state of their health, their names and where their relatives are located, the conditions of the prisons where they are being held, and full information about those who have died. They all have a right to contact their relatives, to receive quality medical care, to contact lawyers, to see the Red Cross, and to contact Amnesty International if they so desire.


    ONLY Courts must be allowed to decide what evidence must be kept secret.
    All else must be open to the public. This is the ONLY way to end injustice and to restore our name among the nations of the world.

  5. Dizzy says:

    Right on Ian, Wingard and Kandari are all over the place saying what you just said.

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