Innocents at Gitmo

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As the new Congress takes form, in a vital bipartisan action, Sen. Patrick Leahy, Vermont Democrat, chairman of the Senate Judiciary Committee, and his predecessor, Arlen Specter, Pennsylvania Republican, will present a bill to undo the constitutional damage of last year's Military Commissions Act that stripped all prisoners at Guantanamo of their habeas corpus right to go into our federal courts for review of their conditions of confinement.

Getting this bill passed, and then overturning an expected presidential veto, is especially necessary now that the Pentagon plans to hold war-crimes trials for dozens of prisoners at Guantanamo Bay in 2007. Moreover, as Tim Golden writes in the Dec. 10 New York Times, the authorities there are now "taking a tougher line" with the detainees. For one example, the brutal force-feeding of prisoners engaged in hunger strikes continues, despite the criticism of international human-rights groups.

Explains Rear Adm. Harry Harris Jr., commander of the Guantanamo task force, those still being held there are "all terrorists... enemy combatants. We have learned how committed they are... how dangerous they are."

And, as a lawyer for a detainee says of the guards: "They know we do not have a judge to take this case to, so they can pile on the detainees."

I expect that during the congressional hearings on the Leahy-Specter bill to get these prisoners back into the courts, many Americans will discover how far from dangerous many of these detainees actually are.

In recent months, two extensively documented reports from New Jersey's Seton Hall Law School, based entirely on Defense Department data, rebut the administration's contention -- exemplified by departed Defense Secretary Donald Rumsfeld -- that most of the detainees "are the best-trained, most vicious killers on the face of the Earth."

Researched and written by law professor Mark Denbeaux; his son, Joshua (counsel to two Guantanamo detainees); and law students at Seton Hall, the reports demonstrate that:

"Only 8 percent of the detainees were characterized (in the Defense Department data) as Al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with Al Qaeda at all." As for those picked up in Afghanistan, "86 percent were arrested by either Pakistan or the Northern Alliance and turned over to United States custody."

And there is this revealing information: "This 86 percent of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time when the U.S. offered large bounties for capture of suspected terrorists." The captives in these mass roundups were hardly screened carefully for their terrorist connections by the bounty hunters -- nor were they carefully screened, according to international law criteria, by our armed forces.

Once at Guantanamo, to what extent were these prisoners given the due-process rights ordered by the Supreme Court in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006)?

This is what the Seton Hall reports found in the Defense Department documents: "When considering all the hearings, 89 percent of the time, no evidence was presented on behalf of the detainees." And the government's classified evidence, intended to be the most powerful -- evidence the prisoners were not allowed to see and rebut -- was always presumed by the tribunal to be reliable and valid. So much for any presumption of innocence -- essential to due process.

At these hearings -- to determine whether the detainees were unlawful enemy combatants -- they were not allowed to have a lawyer. "Instead of a lawyer," the Seton Hall reports show, "the detainee was designated a personal representative... who was not his advocate, and whose role, both in theory and practice, was minimal... At the end of the hearings, the personal representative failed to exercise his right to comment in 98 percent of the cases."

Writing of these Seton Hall reports -- Robyn Blumner, a columnist and member of the editorial board of the St. Petersburg Times -- noted that when "three detainees were initially found not to be enemy combatants," one of whom had been unanimously cleared by two prior tribunals, "was finally found to be [an enemy combatant] in the third one." (Why, then, bother with an eventual war-crimes trial?)

And the other two, first found not to be enemy combatants, were also "convicted" in subsequent hearings -- where they were barred from the proceedings.

Stuart Taylor -- in the Dec. 18 widely respected National Journal -- adds that while he doesn't doubt that there are close calls in some of these hearings, "the current process is so flawed as to allow for indefinite detention even of detainees who could produce conclusive proof, if given fair hearings, that they have nothing to do with terrorists. Congress needs to fix this."

Congress needs to fix a lot more -- including the National Security Agency's lawless, warrantless spying on Americans and the CIA's "renditions" of suspects to be tortured in other countries -- among the president's special CIA powers -- authorized by the president, although outside all American and international laws.