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U.S. transfers 20 more prisoners to Afghan custody
February 10, 2008
Confusion Clouds Guantanamo Tribunals
Associated Press
February 6, 2008
France urges US to drop Guantanamo trial of Canadian
January 23, 2008
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Detainees: We Must Protect the Innocent

The Wall Street Journal
October 24, 2006

My Oct. 7 Rule of Law column "Produce the Body" urged that people detained in Guatanamo and other places be allowed to use the ancient writ of habeas corpus to challenge the legality of their detention in federal court. The three Oct. 16 Letters to the Editor of John D. Pearse, Richard Eggers and Kimble Johnson strongly dispute that conclusion and defend, though not explicitly, the recent Military Commissions Act that denies detainees any meaningful opportunity to obtain a judicial review of their detentions. One common thread in all three letters is that enemies of the United States who do not fight in uniform should not receive better treatment in our hands than uniformed combatants.

 There is a great deal of force to the point, as far as it goes, for terrorists are, as Mr. Johnson insists, "a pernicious cancer on the civilized world." But that point does not go far enough. The implicit premise in this denunciation is that all men out of uniform taken into custody are in fact enemy combatants seeking to avoid POW status. But precisely because many detainees were not in uniform, we have to confront the serious risk of error that results in prolonged detention of innocent persons.

Some fraction, large or small, of these detainees may have no connection with military actions against the U.S. at all. Some, perhaps many, of the detainees were turned in by bounty hunters or personal enemies. Some may well have been our own allies. We have already had one story of the incarceration in Guantanamo Bay of Abdul Rahim Al Ginco, whose sole crime was to be tortured by the Taliban into making propaganda videos for al Qaeda. The two witnesses to his innocence are British and Russian. Is "no comment" a sufficient government response? Are there any more such cases? Nor need the willingness to give these detainees a judicial hearing involve the compromise of military secrets, as Mr. Pearse suggests.

Detention hearings are not criminal trials, for the only point in issue is the status of the detainee, not the nature and extent of their participation in unlawful activities for which the government remains unwilling to prosecute. Exactly what military secrets will be put in issue if the government presents evidence that a detainee was captured with a weapon in his hand two years ago? If the detainee proves that he was turned over by a bounty hunter or tortured by al Qaeda? Some cases will surely prove to be more difficult, and it may well be that the burden of proof in these hearings should be on the detainee to establish noncombatant status. But with a steady stream of cases, it should not be beyond the power of judges to devise rules to preserve the confidentiality of vital information or to sort out the hard from the easy cases.

The refusal to allow any detainee to present any evidence of their personal status looks like vast overkill in light of the risk of error inherent in this situation. No one believes, I hope, that a thousand terrorists should be set free so that one innocent can avoid confinement. By the same token, we should not be willing to detain a thousand innocents to hold one terrorist. Finally, Mr. Eggers is guilty of exaggeration when he says that an unconscionable terrorist attack more than five years ago counts as an actual invasion today.

A resumption of direct attacks on this country could properly trigger the suspension of habeas corpus, but with hard work, constant diligence and good fortune we should be able to forestall that day. In the meantime, as a nation we should be deeply concerned about the use of high-handed procedures symptomatic of the nasty tactics used by our sworn enemies whom we rightly hold in moral contempt.

Richard A. Epstein

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