<< Back

Detainee Plans Undermine Ideals We Hold Dearest

By Ana Menendez
The Miami Herald
September 20, 2006

Foreign prisoners of the U.S. government may finally get the right to a fair trial, especially if they happen to be suspected terrorist masterminds. Lowly cabdrivers with unimpressive crime résumés, however, may be out of luck.

That's one of the stranger consequences of the Bush administration's new plan to try terrorism suspects. Much of the recent public debate around the proposal, and the Senate's alternative plan, has centered on the administration's efforts to redefine torture.

But embedded in both plans is a little-noticed provision that would wipe out the pending cases of many GuantánamoBay detainees.

What that means is that the prisoners who have not been charged -- only 10 of the 455 or so held there have been -- may languish in jail indefinitely, while those prisoners charged with terrible crimes may get their day in court.

At issue is not just American law, but the centuries-old principle that every prisoner has the right to challenge his captivity, even from the dungeon.

CHANGES DENY DUE PROCESS

''This is very dangerous,'' said Miami attorney Neal Sonnett, who has observed the proceedings in Guantánamo for the American Bar Association. ``It's hard to understand why they just won't give detainees an opportunity to defend themselves. A very small percentage of people who are in Guantánamo have anything to do with the war on terror.''

Tuesday, the ABA sent a letter to representatives to protest various provisions of the House proposal, including Section 5, which ``strips judicial review of existing habeas corpus claims for detainees in U.S. custody.''

The writ of habeas corpus is a legal principle that goes back to the Magna Carta. It's an old notion with a simple premise: ``Show the evidence or set me free.''

The absence of habeas corpus in totalitarian regimes is what allows dictators to round up the opposition and keep them locked up forever without a trial.

In the United States, the writ guarantees prisoners the right to due process and, in a wider sense, promises protection against unjust imprisonment.

In 2004, the U.S. Supreme Court ruled that the habeas statute applied to the Guantánamo prisoners, as well. That decision allowed attorneys to file dozens of petitions on behalf of the prisoners in federal court.

What lawmakers are trying to do now is, in effect, change the statute. The move would likely cancel the pending petitions and set up a confrontation with the Supreme Court over its constitutionality.

The irony is that the provision comes embedded in proposals that otherwise seek to bring a measure of fairness to the detention process. The legislation, which the House is expected to consider as early as next week, responds to another Supreme Court ruling earlier this year that said the Geneva Conventions apply to terrorism suspects.

That's why the administration now needs Congress to authorize a new plan for trying the suspects. The unintended effect, though, may be that prisoners suspected of the worst crimes will be the ones most likely to see the evidence against them.

`TRULY A BIZARRE RESULT'

''The bottom line is that -- if this legislation passes -- people like Khalid Sheik Mohammed will get a full trial, while hundreds of detainees who are not charged with any crime will be denied even a hearing to test whether there is any basis to hold them,'' said New York attorney Joshua Colangelo-Bryan, whose firm represents some uncharged detainees.

``This is truly a bizarre result, considering that [Khalid Sheik Mohammed] is supposed to be the architect of 9/11 and the military does not even accuse a majority of the detainees of any involvement in violence.''

Bizarre indeed. But we've come to expect no less from an administration that wages war on behalf of democracy abroad, while shredding the principles that underpin it here at home.

<< Back