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Spotlight on the Alternative Justice System

There is a higher probability of doing time in the ‘land of the free’ than in any other country.

On its way to becoming a prison state with the highest incarceration rate in the world, the U.S. seized the center stage again when it provoked the hunger strike at Guantanamo Bay.


Wall Street Journal reporter and author Jess Bravin (HC ’87) highlights some of the differences between U.S. prisons and Guantanamo and discusses where to try suspected terrorists in this exclusive author interview.


Jess: There’s one tremendous difference. In U.S. prisons, people are there because they have been convicted of a crime and sentenced to a term of years or life. At Guantanamo, as we know, almost no one there has actually been convicted of anything. They’re being held preventatively.

LitVote: Can you tell me how many are in there for no reason at all?

Jess: Sure. Well, right now there are about 166 men still held at Guantanamo Bay. Congress has imposed a lot of restrictions preventing the president from transferring people out of Guantanamo, and the United States is having difficulty finding places to send them since it won’t accept them on its own soil, so it has to try to negotiate or persuade or pay other countries to take them. Most of the prisoners cleared for release are from Yemen, and U.S. authorities believe the environment in Yemen is too unstable and risky for these men. Other detainees, such as the Uighur Muslims from China, are at risk of persecution if repatriated to their home countries. And the US Congress has imposed restrictions on the president’s ability to transfer detainees out of Guantanamo.

LitVote: How come they’re all men? US prisons are 92 percent men and 8 percent women.

Jess: … there don’t seem to be a lot of women who were involved in very high levels or involved in organizing terrorist acts or taking up arms who were fingered in this way.

LitVote: What about the people in the orange suits with the bags over their heads?

Jess: I did see in January of 2002 a military transport plane that was offloaded with detainees coming off, and they had those famous orange jumpsuits, and they were handcuffed and they had on blackout goggles and earmuffs and facemasks and gloves, basically to deprive them of most of their senses. I did not see any abuse, and my visits there have been many, but my visits at Guantanamo have all been under military escort, so I can’t see anything that they don’t choose to let me see when I’m there.

LitVote: When do you expect it to be shut down entirely?

Jess: Well, I have no information on that. The president said he was going to do it when he ran for office the first time in 2008. They recently reassigned the State Department official whose job was finding new homes for the detainees. I suppose the questions is whether President Obama wants to leave off in four years having accomplished that campaign promise from 2008 or having it be one of the things that is a mark on his report card as incomplete.

LitVote: Jess, tell us what’s going on right now that makes The Terror Courts timely?

Jess: Well one thing that just happened was the arrest of Osama Bin Laden’s son-in-law Sulaiman Abu Ghaith, who was sent to a federal court in New York City, and that renewed attention to this debate that’s really been going on since 9/11 about where is the proper place to try suspected terrorists. Should we use the federal courts or should we set up a new court system to handle them? And the United States basically has … used the federal courts for the vast majority of suspected terrorists, but there’s also been this ongoing and extremely troubled effort to create this alternative justice system, which is what my book is about. When the Obama administration announced that Mr. Abu Ghaith was going to appear in federal court that day, arraigned for conspiracy to kill Americans, it provoked a backlash from some Republican senators who said … they should be sent to Guantanamo and put before a military commission. And my book is all about those military commissions. The D.C. Circuit Court of Appeals earlier this year invalidated the charge of conspiracy for military commissions on the grounds that conspiracy has not been recognized as a war crime and military commissions only have jurisdiction over war crimes, so therefore the people convicted of conspiracy—there were only seven convictions, mainly to plea-bargain against the military commissions—those convictions are invalid because you can’t have what’s called an ex-post-facto law and criminalize retroactively conduct that was lawful when committed.

LitVote: What are the philosophical underpinnings of the book?

Jess: This is really at its core a book about American values, particularly as they are expressed through our legal system. A number of the characters in this book find themselves in real ethical, professional and moral crossroads as they find what they thought were core American values being challenged not only by the enemy … but also by their own civilian superiors. People who were doing extremely sensitive work mainly behind closed doors at the heart of the American response to 9/11, and found a lot of their values, ideas and principles tested in a way that they never would have dreamed. Yes, that’s there. Now, what is the conclusion about what they did? I actually try not to connect that final dot.

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