July 26, 2004 © New York University. All Rights Reserved.

A Question of Fair "Justice" for prisoners held at Guantanamo

By Dan Smith
Global Beat Syndicate

"All's fair in love and war." So said English novelist Francis Edward Smedley (1818-1864) in his first successful novel.

"Francis who?" you may ask. That Smedley's name has virtually disappeared--even from literary memory--is understandable; he died 140 years ago.

But to have virtually disappeared from the world while still living--as has been the case with nearly 600 so-called "enemy combatants" detained at the U.S. prison in Guantanamo Bay, Cuba, for the last two years--is more than unfair to those being held.

Finally, a few days ago, on July 17, these "disappeared" have emerged fully from the shadows of the nameless living and have reclaimed their lives and identities.

The change has been rapid for the usually unhurried legal system. In June, some of the Bush administration's autocratic barriers to due process were struck down by the Supreme Court when it ruled that the detainees had a right to petition federal courts for a habeas corpus hearing, the first step in reuniting them to the living.

Reaction in the Pentagon's top civilian echelons suggests they had not anticipated the Court would rule as it did.   In an apparent effort to blunt the fairness of any habeas corpus proceeding which, on a level playing field, might lead to a ruling that a detained petitioner could no longer be held, Deputy Defense Secretary Paul Wolfowitz has signed a new directive creating "Combatant Status Review Tribunals" charged with evaluating whether a detainee's categorization as an "enemy combatant" is still valid.

On the surface, this might seem to be a step forward in restoring basic rights of the detainees. The directive initially requires that each detainee be informed of his designation as an enemy combatant, that a review of the "evidence" that led to the branding of a detainee as an enemy combatant will be conducted, and that each detainee will be afforded the opportunity for a habeas corpus hearing in federal court. As to procedures for the evidentiary review by the combatant status tribunal, comprised of three military officers, each detainee will have an interpreter and help from a military officer who is not a lawyer. During the review, the detainee may make statements, present documents, and may call and question "readily available" witnesses.

But in contradiction to U.S. legal tradition enshrined in the Constitution and international norms set forth in the Geneva Conventions, the Wolfowitz directive specifies that the tribunal will approach each review with a "rebuttable presumption" favoring the government's assertion and its evidence that the detainee is an enemy combatant. In sum, That is, the presumption in each review is "guilty until proven innocent," which places the burden on the detainee to disprove the government's evidence"--in a process where "normal" legal supports (for example, a qualified attorney) are denied.

Why go to the administrative trouble of 595 unfair hearings designed to reaffirm the current status of the Guantanamo prisoners, especially when the Defense Department has already created an annual review process to determine whether a detainee is still a danger to the United States, and if so, to keep him in prison?

Most experts say the annual review process will take too long to be of any possible use by the government in the habeas corpus reviews allowed by the Supreme Court in last month's ruling. The Pentagon believes that if, during the habeas corpus hearings, it can show the federal courts that detainees have had a recent status review, the courts will be inclined to accept the government's determination that the petitioner is still a danger and should not be released under grant of habeas corpus.

In a perfect world, all might well be fair in love and war. But the world is not perfect, and little in it is fair, as millions if not billions of people can attest. This reality makes it even more critical that those few areas in which a concerted effort has been made to ensure fairness--specifically the rule of law and the presumption of innocence--not be gratuitously surrendered to unilateral edicts by top officials in the Bush administration.

Dan Smith is senior analyst on military affairs at the Friends Committee on National Legislation, Washington, D.C., and a retired U.S. Army colonel. The FCNL is a public interest lobby that seeks to bring the concerns, experiences and testimonies of Friends (called Quakers) to bear on national policy decisions.

© 2000 New York University. All Rights Reserved. The Global Beat Syndicate, a service of New York University's Center for War, Peace, and the News Media, provides editors with commentary and perspective articles on critical global issues from contributors around the world. For more information, check out http://www.nyu.edu/globalbeat/syndicate/.

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