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Try The Guantanamo Detainees Now -- in U.S. Court
Eileen M. O'Connor, Yiota Souras (op-ed)
San Francisco Chronicle
June 21, 2006
In the last few weeks, President Bush has repeatedly told the world he would like nothing more than to "close Guantanamo," last week admitting that the mere existence of the camp "provides an excuse ... to say the United States is not upholding the values that they're trying to encourage other countries to adhere to."
The president believes the best way to deal with the detainees is through military courts, and that he can "get these people to court" and "close Guantanamo" once the U.S. Supreme Court rules in Hamdan vs. Rumsfeld whether, as the president puts it, detainees "need to have a fair trial in a civilian court or in a military court."
Yet the question before the high court deals with whether the president has the constitutional or statutory authority to establish these military commissions and whether their procedures and findings can be challenged in federal court. So even if the U.S. Supreme Court supports the Bush administration's contention that the president has the authority to establish these commissions using procedures that are not proscribed by the Uniform Code of Military Justice or the Geneva Conventions, the "fairness" of these military courts will always be subject to question, especially outside the United States.
While military commissions have been used since the Civil War, historically the president has never had unfettered authority to establish such commissions unrestrained by basic tenets of military or international law. Bush's Military Order of November 2001, however, unilaterally established a commission in which detainees cannot represent themselves or access evidence used against them that is deemed by the prosecution to be classified. Under the system, there is no independent review process, and fundamental due process guarantees are absent.
For example, after six months of petitioning the courts, the U.S. Justice Department and the military leadership of the Guantanamo Naval Base for approval, Orrick attorneys traveled to Guantanamo last week to visit, for the first time, Adham, a detainee that our firm is representing.
Adham has been held more than four years, since he was 18 years old, in a cell, with 20 minutes of exercise a day, without knowing the charges against him. He has had no personal contact with his family or his lawyers, until we visited. His family in Yemen has received a few censored letters, but they say they don't understand why he is being held or what evidence the United States has against him. After only one meeting, and with another one approved and scheduled, Orrick's attorneys were then denied access to him, with no explanation.
After petitioning the court to see our client and to be informed when the base would reopen and our meeting with him rescheduled immediately, the only reason the Justice Department could give was that the meeting was canceled due to an investigation into the suicides of three detainees at Guantanamo the previous weekend. Four reporters at Guantanamo covering the story were also told they had to leave.
This lack of transparency surrounding both the detentions themselves, the treatment inside the detention center and the basis of the charges and evidence against them will not be changed with a ruling by the U.S. Supreme Court. True, some of the detainees most certainly are "very dangerous" as Bush has pointed out, but without the ability to even understand the charges against them, or access the evidence supporting these charges, there will always be questions from the outside world as to whether or not, as the president says, "we are a nation of laws and rule of law." Even Adham knew enough about American justice to ask why, if U.S. law applied, he could not go to a U.S. court and face the charges against him.
To prove his point, Bush can use a system that is acknowledged to be transparent and fair: The U.S. justice system.
By allowing U.S. courts, not military tribunals, to try these cases, the president can silence critics, get the detainees to court and enable his administration to "close Guantanamo," whatever happens in Hamdan. Already, the vast majority of detainees at Guantanamo have a case pending in court. Many of these cases have been pending for more than a year and a half and would be proceeding normally if the Defense Department had not intervened in January, prompting the courts to stay all proceedings.
As Bush acknowledges, it is important that the United States be seen as "upholding the values that they're trying to encourage other countries to adhere to," and that can be done by bringing the detainees to a U.S. court, where the world knows, justice will be done.
Eileen O'Connor and Yiota Souras are attorneys at Orrick, Herrington and Sutcliffe, a San Francisco-based firm representing two Guantanamo detainees pro bono in conjunction with the Center for Constitutional Rights. www.ccr-ny.org
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