- The Washington Times - Tuesday, December 9, 2008

COMMENTARY:

The 250 alleged “enemy combatant” detainees at Guantanamo Bay suffering lifetime detentions without accusation or trial should either be criminally prosecuted in civilian courts or released.

No plausible post-Sept. 11, 2001, terrorist danger justifies abandoning the crown jewel of the United States that wins both the cooperation and admiration of foreign countries: the rule of law administered by independent judges to prevent arbitrary deprivations of liberty.


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Monday the self-confessed mastermind of the Sept. 11 attacks - Khalid Sheikh Mohammed - and four other accused appeared in a military court as formal proceedings against them began.

The history of Guantanamo Bay speaks volumes about the Bush administration’s hyper-exaggeration of an international terrorist danger that reads like a chapter from George Orwell’s “1984.” In January 2002, President Bush maintained: “These [detainees] are killers. These are terrorists. They know no countries. The only thing they know about countries is when they find a country that’s been weakened and they want to occupy it like a parasite.” Vice President Dick Cheney echoed: “These are the worst of a very bad lot. They are very dangerous. They are devoted to killing millions of Americans, innocent Americans.”



Three years later, the vice president similarly insisted: “The people that are there are people we picked up on the battlefield primarily in Afghanistan. They’re terrorists. They’re bomb-makers. … They’re members of al Qaeda and the Taliban.” Adm. John Stufflebeam said: “They are bad guys. These are the worst of the worst and if let out on the street, they will go back to the proclivity of trying to kill Americans and others.” Defense Secretary Donald Rumsfeld thundered: “[Guantanamo detainees are] among the most dangerous, best-trained, vicious killers on the face of the Earth.” Gen. Richard Myers said: “[T]hese are people that would gnaw through hydraulic lines in the back of a C-17 to bring it down, I mean. So these are very, very dangerous people, and that’s how they’re being treated.”

But let facts be submitted to a candid audience. Approximately 780 suspected enemy combatants have been detained at Guantanamo Bay since 2001. More than 500 have been voluntarily released, which discredits the malignant descriptions by the president and his supporting cast: “killers,” “terrorists,” “bomb-makers,” the “worst of the worst” and so heartless as to “gnaw through hydraulic lines” on an aircraft.

In 2006, the Associated Press located 245 of the freed detainees. Of that number, 205 had been released without charge or exonerated of charges related to their Guantanamo detentions. The AP report elaborated: “Only a tiny fraction of transferred detainees have been put on trial. The AP identified 14 trials, in which eight men were acquitted and six are awaiting verdict. … The Afghan government has freed every one of the more than 83 Afghans sent home. … At least 67 of 70 repatriated Pakistanis are free after spending a year in Adiala Jail. A senior Pakistani Interior Ministry official said investigators determined that most had been ‘sold’ for bounties to U.S. forces by Afghan warlords who invented links between the men and Al Qaeda. … All 29 detainees who were repatriated to Britain, Spain, Germany, Russia, Australia, Turkey, Denmark, Bahrain and the Maldives were freed, some within hours after being sent home for ‘continued detention.’ ”

The United States has conceded that 17 Uighurs, whose detentions continue at Guantanamo Bay after seven years, are not enemy combatants and pose no danger to the United States. Conservative U.S. District Judge Richard Leon recently ordered the release for lack of evidence of five Algerian detainees held at Guantanamo since January 2002 after capture in Bosnia.

Maj. Gen. Michael Dunleavy, the leading military commander at Guantanamo opined one year after Sept. 11, 2001, that up to 50 percent of the detainees were mistakes, including mental cases and a few teenagers. A Seton Hall University Law School study reviewed in depth the cases of 517 Guantanamo detainees. Only 8 percent were claimed to have had an al Qaeda connection. Fifty-five percent were never accused of committing a hostile act against the United States. All but 5 percent had been captured by non-United States forces, many of whom were paid handsomely for their terrorist accusations.

Two United States citizens have been detained as enemy combatants. One, Yasser Hamdi, was released to Saudi Arabia. The other, Jose Padilla, was charged, tried and convicted in federal court for conspiring to provide material assistance to a terrorist organization. Even Salim Ahmed Hamdan, Osama bin Laden’s driver, once detained as an enemy combatant, was released to Yemen.

Guantanamo Bay detainees are generally less dangerous than are suspected murderers, who may not be detained without accusation or trial. Further, any detainee who poses a nontrivial terrorism threat can be prosecuted in civilian court for the crime of conspiring to provide material assistance, which reaches even unexecuted plans to train in a terrorist camp as well as financial assistance or services of any sort whatsoever.

Nor are there prohibitive difficulties in gathering evidence and prosecuting material assistance or companion terrorist cases without disclosing intelligence sources and methods. Then-assistant attorney general for the criminal division, Michael Chertoff, amplified before the Senate Judiciary Committee on Nov. 28, 2001: “Our [regular] legal system is terrific and can handle these [terrorism] cases. … [It is clear] that the history of this government in prosecuting terrorists in domestic courts has been one of unmitigated success and one in which the judges have done a superb job of managing the courtroom and not compromising our concerns about security and our concerns about classified information.”

Doubting Thomases maintain some Guantanamo detainees are too dangerous to release yet too innocent to prosecute. To paraphrase the philosophy of Vice President Cheney, they maintain that if there’s a 1 percent chance of terrible destruction, the government must treat that microscopic probability as gospel. But that invitation to arbitrary and endless detentions - for example, the 17 illegally detained Uighurs for more than seven years - has no place in any civilized system of justice. Its place is with the Queen of Hearts in “Alice in Wonderland”: “Sentence first-verdict afterwards.”

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates, Inc., and author of “Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.”

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