The Inhuman Stain: The War On Justice

In Its Conduct Towards The Detainees Of Guantánamo, The Bush Administration Is Fighting Not So Much A War On Terror, As a War On Justice.

By Brent Mickum
April 26, 2007 5:30 PM
CommentIsFree.Guardian

In the latest round of never-ending court filings, the Bush administration's scorched earth litigation tactics involving the prisoners at Guantánamo continue apace.

Advancing legal arguments which the civilised word reviles as morally repugnant, the government renews its claims that:

1) prisoners have no right to counsel;

2) the military is free to disregard the attorney-client privilege that, among other things, may be outlining legal strategy; and

3) prisoners' attorneys who have security clearance are forbidden access to classified
information.

Representing the prisoners at Guantánamo is, perhaps, the most difficult legal task I have undertaken in a career in which I have tried murder cases, represented Fortune 500 companies in massive, multi-district class actions, and prosecuted cases as a Special Assistant United States Attorney. But it is impossible to represent a client in a meaningful way if you are denied reasonable access to your client.

Consider the case of a prisoner who has been in isolation for more than a year and does not possess all his faculties. What is the likelihood that he will agree to have you represent him based on a single meeting? And what is the likelihood that such a client would be able to assist in his own defence even if he did? It is also impossible to represent a client if you are forced to share your litigation strategy with the military. Does any legal system in the world require one side to expose its strategy to the other?

Finally, it is impossible to represent a client when you are unable to review the evidence against him. We know the result; it has happened innumerable times in the tribunal processes at Guantánamo.

The following is an actual colloquy that took place between a prisoner and the tribunal after he was read the charge against him:

Prosecutor: While living in Bosnia, the detainee associated with a known al-Qaida operative.

Detainee: Give me his name.

President of the tribunal: I do not know.

Detainee: How can I respond to this?

President: Did you know of anybody who was a member of al-Qaida?

Detainee: No, no.

President: I'm sorry, what was your response?

Detainee: No. If you tell me the name, I can respond and defend myself against this accusation.

President: We are asking you the questions and we need you to respond to what is on the classified summary.

Although this could have come from The Adventures of Alice in Wonderland, it is the Bush administration's version of justice at Guantánamo.

Sadly, the world knows why the Bush administration wants to close the window on Guantánamo. Through the work of attorneys and NGOs, the horrors of Guantánamo and the CIA black sites are being exposed. The Bush administration frequently asserts that the prisoners at Guantánamo are among the most highly-trained, vicious killers in the world, calling them the worst of the worst. But the staggering number of innocent men at Guantánamo belies this hollow pronouncement.

Leaving aside the high-risk prisoners who were recently transferred to Guantánamo, what do we know about the men who have been held without charge for more than five years? If the administration had its way, the public would know nothing. Guantánamo would have remained the torture and interrogation centre beyond the rule of law that the administration intended it to be. But following the supreme court's decision in Rasul v Bush, which allowed attorneys access to the prisons, we now know the faces of the men who inhabit the isolation cells at Guantánamo.

Take David Hicks, the original poster boy for the Bush administration, a terrorist seemingly on the fast track to a death sentence, but for the intervention of a military JAG [Judge Advocate General's Corps] officer who refused orders to plead his client guilty. In a trial that was more circus than serious, the military offered no evidence that Hicks ever took up arms against the United States or committed any violent acts. If the United States had not attacked Afghanistan, David Hick's actions would not even be criminal. Eventually, Hicks pleaded guilty to a single charge of training with the Taliban and was sentenced to nine months. After being tortured and held for more than five years, most of it spent in solitary confinement, David Hicks will soon be free.

But what about the prisoners at Guantánamo who will never be charged? Declassified portions of the Combat Status Review Tribunals, which were released by the military in response to a Freedom of Information Act request, reveal that the majority of the prisoners are not terrorists. Of all the prisoners at Guantánamo, only 8% were found by the military to be al-Qaida fighters.

The military concluded that 55% committed no hostile act against the United States. Only 5% of the prisoners at Guantánamo were captured by the United States. A vast number of the prisoners at Guantánamo - 86% - were turned over by warlords in Pakistan and Afghanistan in return for huge bounties offered by the United States.

Given the foregoing, how does the military justify classifying the prisoners as enemy combatants? Setting aside the absolute inability of the prisoners even to see the evidence against them, much less meaningfully defend themselves, perhaps the following explanation sheds some light on the subject. In many cases, military tribunals found prisoners to be enemy combatants on the basis of their affiliation with 72 different terrorist organisations. The only problem with such a finding is that 52 of the organisations, 72% of the total, do not even appear on the Patriot Act terrorist exclusion list or State Department exclusion lists. Members of 64 of the 72 groups identified by the military as terrorists, 89% of the total, would be permitted entry into the United States.

In the final analysis, however, it is the government's breathtaking ability to classify almost anyone an enemy combatant that accounts for the continued detention of most of the prisoners at Guantánamo. At a hearing before Judge Green in December 2004, the government revealed the extent of its authority to detain the innocent indefinitely.

Answering a series of hypothetical question posed by Judge Green, the following, clearly innocent individuals all fall within the purview of the government's definition of an enemy combatant:

1) a little old lady in Switzerland who writes checks to what she thinks is a charity that helps orphans in Afghanistan, but really is a front to finance al-Qaida activities;

2) a resident of London who collects money from worshippers at mosques to support a hospital in Syria, but unknowingly entrusts the money for that purpose to someone in al-Qaida;

3) a resident of Dublin who unknowingly teaches English to the son of a person the CIA knows to be a member of al-Qaida;

4) a Wall Street Journal reporter who knows the location of Osama bin Laden, but does not reveal it to protect her source.

Begrudgingly, the administration has released more than 400 prisoners. Of the 245 released prisoners we have been able to follow, we know that 205 were either freed without charge or cleared of charges relating to their detention at Guantánamo. The head of Afghanistan's Reconciliation Commission is on record saying that all 83 Afghans who were repatriated were innocent and ended up at Guantánamo because of tribal or personal rivalries.

A senior official in the Pakistani Interior Ministry has said investigators determined that 67 of 70 prisoners repatriated to Pakistan were sold for bounties by Afghan warlords who invented the links to al-Qaida. He is quoted as saying, "We consider them innocent."

Thirty detainees repatriated to Britain, Spain, Germany, Russia, Australia, Turkey, Denmark, Bahrain and Maldives were freed, some within hours after being sent home for "continued detention". All of the Saudis who have been repatriated, with the exception of the most recently released group, have been freed.

Although the Bush administration continues to assert that the men who populate the prisons at Guantánamo pose a threat, the facts and statistics belie that contention. My experience, and that of most of my colleagues, is that, like the little old lady from Switzerland, most of the prisoners are innocent.

The Bush administration would do well to reflect on Gandhi's and Martin Luther King's admonishment that it is not possible to have peace without justice. Amen.