- The Washington Times - Sunday, December 26, 2004

Like the town meetings of yore, newspapers’ letter pages include criticisms of higher officials — and their responses. I welcome the chance to answer the charge by Bryan G. Whitman, deputy assistant secretary of defense for public affairs, in a Dec. 9 letter in The Washington Times, that I have been egregiously unfair in claiming that the Defense Department has defied a Supreme Court decision requiring due process for detainees at Guantanamo Bay.

At issue is a June 24 Supreme Court decision, Rasul v. Bush, which directly concerns the Defense Department’s Combat StatusReviewTribunals (CSRTs), bodies that are deciding whether detainees, some held for more than two years, are actually enemy combatants.

Mr. Whitman oddly fails to mention this particular ruling, in which Justice John Paul Stevens, writing for a 6-3 majority, pointed out that these prisoners are on “territory over which the United States exercises exclusive jurisdiction and control.” Accordingly, Justice Stevens continued, “aliens held at the base, no less than American citizens, are entitled to involve the federal courts’ authority.” And, in contesting the legality of their detention as enemy combatants, the detainees have the right to due process, the basic fairness central to our constitutional rule of law.

For the Defense Department, Mr. Whitman charges that I have confused these CSRTs with the separate military commission at Guantanamo trying detainees for war crimes. Actually, I made clear in my first paragraph that there were two separate proceedings underway, and I focused on the very procedures Mr. Whitman writes about.

In responding to my point that these detainees do not have lawyers but instead are provided military officers without legal training as their “personal representatives” Mr. Whitman says that, after all, these CSRTs are “not legal proceedings.” But, since he also says that the Defense Department is indeed givingthemdue process, how is due process possible if they don’t have a lawyer? Moreover, if they are found to be enemy combatants, they can be permanently imprisoned. They are even denied most of the crucial, purported evidence against them because it is classified. And what isn’t classified is often hearsay alleged information.

Crucially, the prisoners are not presumed innocent, a basic starting point of due process under our Constitution. Instead, at these hearings, they have to prove they are not enemy combatants. Not surprisingly, in 207 decisions on prisoners who have gone before these Combatant Status Review Tribunals, only two have been released. All in all, the Defense Department’s definition of basic fairness sounds more like Chinese or Cuban due process.

Moreover, Tom Wilner, an attorney representing 12 Kuwaiti detainees, has pointed out in a National Public Radio report (Dec. 2) that the Defense Department has yet to provide at Guantanamo “a standardized method to determine who is beingheldand why.” Mr. Wilmer emphasizes that, in fairness, there has to be “some process to really find out who really fought against the United States, who really was dangerous. And not just taking the government’s word on some amorphous standard of who they want to hold.”

Mr. Whitman, speaking for Mr. Rumsfeld, says: “By ignoring facts, Mr. Hentoff does a disservice to his readers; he certainly is entitled to his opinion, but he is not entitled to ignore clear facts.” However, the facts are that the CRSTs have turned due process on its head. As ACLU staff attorney Jameel Jaffer wrote, after witnessing these hearings at Guantanamo: “They are proceedings designed not to provide fair process, but rather to rubber-stamp essentially political decisions.”

At one of the proceedings, as Jackie Northam reported for National Public Radio on Nov. 9, a 27-year-old Yemeni man, his hands and leg shackled and without a lawyer, “often smiled in disbelief as he was asked to explain questions included in the evidence that was unclassified…The detainee repeatedly asked for proof of his guilt. He also requested documentation (about what he was accused of) evidence which the panel said was classified.” This Defense Department “due process” recalls what Defense Secretary Donald Rumsfeld has said (in a Sept. 15, 2002, Newsday article): “Anything that comes up in the United States tends to be looked at as a law enforcement matter … ‘decide whether or not he’s guilty or innocent and give him due process.’ Of course if you’re worried … that you’ve got the risk of terrorists getting their hands on weapons of mass destruction or killing thousands or tens of thousands of people, you’re not terribly interested in whether or not the person is potentially a subject for law enforcement.” So, at Guantanamo, you can do away with the presumption of innocence, exclude lawyers for the imprisoned, and falsely claim that that you’re complying with the Supreme Court’s decision in Rasul v. Bush.

Mr. Whitman, Mr. Rumsfeld, would you describe that as due process to a high school civics class?

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