Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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The Evil at GTMO
December 05, 2007 9:17 AM
When I was getting ready for a trip to Guantanamo Bay last week, I read an article written last year by a young interpreter (and now lawyer) who was working with some of the attorneys for the detainees. Titled “My Guantanamo Diary,” it was a vivid and urgent piece that painted a grim portrait of a place where evil flourishes amid the scrub of the Cuban coastline.
In the article, the interpreter describes the anguish and helplessness she feels after meeting the detainees, most of whom she believes to be innocent. But initially she was conflicted: She admits to one of the lawyers for the detainees that the guards had seemed so friendly.
"Yeah, they're nice,” the lawyer, Tom Wilner, a partner in the Washington office of Shearman & Sterling LLP, shoots back. “But this whole place is evil -- and the face of evil often appears friendly."
That perfectly captures Guantanamo: The face of evil often appears friendly.
It’s a sentiment shared by almost everyone you talk to, those on both sides of the debate. Soldiers and lawyers, military officers and human rights activists—everyone sees evil at Guantanamo.
They just believe the evil lies within different people.
Wilner, who has been representing detainees March 2002, believes most of these men were simply swept up by mistake and now are being imprisoned indefinitely and unlawfully, mostly in isolation. To lawyers like Wilner, Guantanamo represents one of the single biggest human rights abuses in American history.
But the officers and soldiers standing watch see evil elsewhere. They see it in the detainees, whom they consider murderous terrorists (or people who actively supported the murderous terrorists).
They think the detainees have conned lawyers and the international human rights community into believing they’re innocent shepherds, loving family men who just happened to be at the wrong place at the wrong time. Some were in that category, no doubt, they say, but those men have been released.
Like much of the debate over Guantanamo, what’s seems clear is not.
When you go to Guantanamo, you have an almost visceral feeling when you see the detainees. They look exactly like what detainees would look like in a movie, if Hollywood weren’t worried about the stereotypes. And you wonder: Is that KSM? Where is he? Is he 30 feet away? Which cell is he in? (They won’t tell you—they say even the guards don’t know). Or is that a shepherd? Was he simply in the wrong place at the wrong time?
Is that the face of evil? Or a friendly face?
About 300 detainees are at Guantanamo now, down from nearly 800, and they’re held in three different facilities. Of them, 10 percent of them are considered “highly compliant,” and they’re in the most relaxed conditions in Camp IV—even though they’re still under heavy guard and tight security. But they can wander around in a dusty outside courtyard, eat when they choose, sit at picnic tables as long as they like, do their laundry, watch movies and take classes.
That doesn’t mean they’re the least dangerous, though—it was in Camp IV where a riot occurred last year, and the guards say detainees can be cooperative simply to trick them.
The rest are in what are essentially maximum security prisons. They’re kept in narrow cells 22 hours a day. A soldier stares at them through a sliver of a window on the door every few minutes. Their food is delivered through a hatch on the door and is closely monitored. (They can’t, for example, keep their apple until later.) They can go outside into a larger cage for two hours a day.
Mostly, they pace. Back and forth, in their cells or outside. (“That’s all they do,” says one soldier. “They just pace.”) Sometimes they hold prayer beads.
And you wonder what they’re thinking. Are they plotting another murderous attack? Or praying for strength to return to their families and live in peace?
For the past five years, the military has made those judgment calls. It has designated all these men “enemy combatants” and decided which of them belong here—essentially, which ones are evil and which ones are not.
The hearings take place in a small room before three officers, only one of whom is a lawyer. No other lawyers are present. The detainee sits before his “judges” in a plastic chair, his feet shackled to the floor. He doesn’t have access to all the evidence against him. He is limited in evidence he can present.
Lawyers for the detainees say those procedures are woefully inadequate, that the deck is so stacked against the detainees that there’s no way they can possibly make a case that they are innocent. They argue that the detainees have a constitutional right to get into federal court, with a lawyer, to make the case that they should be released.
But the government says those procedures are thorough and fair. We’re at war, they say, and we can’t treat them like drug dealers who are prosecuted in the United States. Because they’re foreign nationals not being held on U.S. soil, the government argues, they aren’t entitled to the full protection of the Constitution—and shouldn’t be.
Today, the Supreme Court will hear those arguments. It’s a major case—perhaps one of the most significant wartime cases in modern history.
In the legal briefs, the issue before the Court seems deceptively straightforward: Can the hundreds of detainees now being held at Guantanamo Bay get into federal court to challenge their detention? Or did Congress lawfully strip the courts of jurisdiction to hear those claims?
The answers could well decide the future for many of these detainees and, in doing so, the future of Guantanamo, itself (remember that the government sent detainees here precisely because it believed they wouldn’t have access to US courts). And, at the end of the day, the answers could well shape how the government pursues and prosecutes terror suspects.
If the Court rules for the detainees, it could order the military to conduct more complete hearings. Or it could say they’re entitled to hearings before a federal trial judge—and that would raise all kind of hard questions. What kind of hearing will those detainees get? What evidence will they have access to? How was that evidence obtained? What sources and methods did the government use to get it?
Those questions are extraordinarily difficult, and they carry enormous risks.
The American criminal justice system is premised on the bedrock foundation that it’s better that one guilty person go free than an innocent man remain behind bars. It’s why we have rules of evidence and procedures in place to protect a defendant’s rights. But at Guantanamo, the rules are different and must be different, the government says. These detainees are waging war against the United States, they say, and allowing one guilty person to go free could bring death and destruction to tens of thousands of Americans.
“What we have on the war on terror was a group committed to killing up to 80,000 people in one morning. The U.S. criminal justice system doesn’t deal with folks who want to kill 80,000 people,” says Capt. Pat McCarthy, the government’s lead lawyer at Guantanamo. “The courts are not well suited to making an exception because this is KSM versus this is just Joe Blow, who was picked up on a DUI stop and happened to have a crack pipe in his car.”
Today, the Court will begin sifting through those arguments. How it will resolve the case—and what that will mean—is, like everything else in this high-stakes debate, unclear.
December 5, 2007 | Permalink | User Comments (59)
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Screw those people at Gitmo.. They wanted to kill Americans then let them rot in hell!!!!! And if a few are innocent then to bad.. they should of said something before they got caught.. If they let these jerks then I say that we take no more prisoners and double tap everyone on the battlefield.. It is better for them to die then to have Americans die.. Besides the world hates us now anyway.. FTW..
Posted by: cornbiker | Dec 5, 2007 10:25:18 AM
And another thing.. Sure those people are going to claim that they are innocent.. and that they are being miss treated.. That is the first rule that you learn when you go to prison.. They know that our messed up legal system has many holes.. and all one needs to do is start drought and that hole will open.. Then you have the lawyers, who want to make a name for them self by protecting those poor innocent (not really) people.. It will give those lawyers 15 minutes of fame so they can charge more in their next case..
Posted by: cornbiker | Dec 5, 2007 10:35:03 AM
Ok, Jan, what exactly is your point? Gitmo is not intended to be a resort!! Evil everywhere? What exactly would you propose? How would you handle the potentially murderous segment of the world committed to our total elimination? Granted, some may have been caught up in the sweep, but most of these have most likely been released. I doubt we Americans are so vindictive as to hold and pay the costs for the incarceration of the innocent. Finally, and I am getting so sick of hearing this, these people are NOT US citizens with constitutional guarantees. I know there are internantional lawyers out there that see dollar signs promoting this point of view, but it just ain't true. If you feel these people are so inclusively treated badly, send them a holiday basket this season.
Posted by: LongT | Dec 5, 2007 10:38:20 AM
I think that there is a huge difference between a resort and making sure we have the right guys and the right proof to convict. If we have it, wehre is the hard in having their day in court? Considering the lies and deceptions from the CinC on down, it is time for some transparency. Further, I was under the impression that a US base is considered US territory. I don't like them, and if they are lgitimately convicted, I'll be happy to pull the switch my self on any of them. We would not stand for our people being held or tried in such a manner.
Posted by: Louis | Dec 5, 2007 11:13:41 AM
Are you people serious???? You really feel it's right for the U.S. gov. to go around snatching people up without proof? What the hell are we? The Gestapo? Look. American lives are no more important than other human beings...and if you disagree than you need your HEAD checked. Part of the reason these people attacked us in the first place is because of our world POLICY...not our freedom. Stuff like Gitmo- just makes it worse. We had an opportunity to unite the world against terrorists and radicals but BUSH managed to unite the WORLD against us....GOD!...I'm so sick of idiots. Start using your mind people!
Posted by: a man who thinks | Dec 5, 2007 12:07:39 PM
But the salient point is we are not at war. Only Congress can declare war. In that sense we are as much enemy combatants as they are.
Posted by: GM | Dec 5, 2007 12:25:16 PM
Snatching up people without proof? Gestapo? Wrong on both counts. These people were gathered up with either a gun in their hand shooting at innocent people, hanging around the local Mosque making bombs to kill innocent people, or openly admittied complicity in killing innocent civilians for their murderous primitive cause. After 6 years of saturation from various reputable sources defining Al Qaeda's tacticts of tying the US Legal system against itself, this apparently has not sunk into many peoples minds. They give their weak minded Lawyers a pre-programmed speech with love and kisses then off their Lawyers run to the courts to fight for them (and indirectly for their cause). These people do not belong to the human race and should be treated as such.
Posted by: Deputy Dawg | Dec 5, 2007 12:40:14 PM
OK, I guess after 9/11 we should have gone into Afganistan after Al Qaeda after failing to reason with the Taliban, with constitutional lawyers in tow. Excuse me mister Al Qaeda sympathizer, could you quit pointing your AK-47 at me for just a moment and take some time to speak to your US appointed attorney here about your recent activities and any possible connections with Al Qaeda and the recent attacks in New York and Washington. We won't take but a moment of your time. You see under our constitution you have the "Human Right" to our courts to prove that your AK-47 there and the bomb ingredients in the corner are not in anyway connected with the assault on our country. We are here to give you a fair chance to present your side of the story. Your US appointed attorney here has all the details. Thank You
Posted by: LongT | Dec 5, 2007 1:01:31 PM
Dawg.... How the hell do you know what all of these men were caught doing? The point is "we" don't have all the facts! The Military isn't being honest about anything...they just want everybody to believe "THEIR BAD...THEIR ALL BAD"! NO TRIAL! NO RIGHTS! JUST LOCK UM UP! WRONG!! WRONG! WRONG! We as a nation..as a people will pay for what Bush has done. This is Wrong. period
Posted by: Charisha Arnold | Dec 5, 2007 1:12:15 PM
Look, I agree that we need to have an effective procedure and process in place to separate the good from the bad. I also have problems with giving terrorists who specifically target non-combatants and non-military targets (schools, hospitals, restaurants, places of worship) full Geneva rights. These problems are very well dealt with in the recent book by Jack Goldsmith -- Terror Presidency (IIRC).
My problem is with people like Tom Wilner, of Shearman & Sterling calling American Marines, Soldiers and Sailors "evil." Many of these people wouldn't be in the military but for the fact that we have been attacked repeatedly over the past two to three decades by terrorists. It's one thing to represent your clients -- it's another to demonize decent American citizens. These men are highly trained, highly disciplined, highly loyal, albeit lowly paid public servants.
Jeez -- wake up Mr. Wilner. Get a moral compass, you blood sucking lawyer.
Posted by: William | Dec 5, 2007 1:18:28 PM
Charisa, I think you are wrong. I don't think we would gather up these people without seeing something that was incriminating. The majority of these people were either on the battlefield actively fighting or reasonably believed to be lending support. Do you think we would waste transport space on cargo planes with someone who was thought to NOT be involved in Al Qaeda support? We wanted intel as quickly as possible and wanted to concentrate on those that could provide it. That's why they are continued to be held because they are still viewed as either dangerous or a source of intel. That's just the way it works! And the Supreme Court argument being presented today is simply "do these enemy combatants have a legal access to our courts to present their case". My bets are on No.
Posted by: LongT | Dec 5, 2007 1:39:06 PM
It is hard to understand why American citizens are so willing to give the benefit of the doubt to terrorists captured on the field of battle and automatically assume that the American soldiers who captured and are holding them are corrupt and immoral barbarians.
The qualities that stand out above all others in our military are integrity, honor and a love of America that is strong enough to voluntarily serve and put themselves in harm's way to protect us. Thank God for them!!
Posted by: Joe Easley | Dec 5, 2007 2:04:18 PM
Joe Easley -
You are right. I think people like Charisa, above, don't know any military people. I've never been in the military myself, but I do know plenty who are and they are good, decent, hard working folks.
Also, I think of my uncles, whom I never met, who died fighting to liberate France in WWII -- they were farm boys - one had a wife and son. These are just normal people who put on a uniform to fight an evil regime. They didn't target civilians.
Posted by: William | Dec 5, 2007 2:16:56 PM
William, One more thought. I once heard a philosophical theory or "point of view" that has stuck with me. I never forgot it. It's called the "three generation cycle" or something like that. It goes something like this; The 1st generation has nothing, and out of necessity, create wealth and out of necessity fight for everything that they feel is important - freedom, rights, wealth, respect for one another, etc. The 2nd generation, their children, having not experienced it first hand, strive to protect all of their parents' hard won freedoms and wealth, knowing somehow that it's important (maybe they've just been told it is). The 3rd generation has never experience hardship, has inherited it all - and because they know nothing else but privelege, squanders it and loses it all. Then it starts over. That's a rough description, but I think you get the idea. BTW, FYI I'm NOT part of the first generation. I think I'm somewhere in the second.
Posted by: LongT | Dec 5, 2007 3:29:22 PM
The detainees are getting free room, board and medical care at the US taxpayer's expense. They are receiving more than they could provide for themselves back home so they should be grateful!!
Posted by: Paula | Dec 5, 2007 3:36:04 PM
It pretty easy to see why some would give the benefit of doubt to terrorists over their own country - They HATE George Bush more than anything else. Makes perfect sense, doesn't it?
Posted by: D-man | Dec 5, 2007 4:18:51 PM
gotta love the way democrats take the side of the enemy in addition to ripping us off with high taxes and then wonder why they can't ever hold the oval office for more than one presidency....the fact that they EVER get elected is some kind of sick accident...
Posted by: dev rios | Dec 5, 2007 4:19:05 PM
Greenburg is the evil that pervades America.
During WWI, WWII, Korea, if we caught a person who was shooting at us or bombing us and they were out of uniform, they were considered a spy / fifth column. They were tried by military tribunals and if found guilty executed.
This is what we should be doing with these terrorists. What evidence does she have that most of them are innocent? Their word?!
If that were the case we would have no need for jails because every jail bird is innocent. Even when there were ten witnesses to the crime!!!
This is typical of the American hating liberal. Our enemies can do anything they please and they are "innocent" and we are "guilty".
Its time to deport the Greenbergs of the world to the terrorist state of their choice. The Greenbergs of our world are the biggest threat to our national security.
Posted by: RA | Dec 5, 2007 4:19:07 PM
so they should be grateful!!
Please. Some serious comments, please.
Posted by: Neil | Dec 5, 2007 4:21:11 PM
Hey Jan, Do you know how many young soldiers we sacrificed bringing these "people" to our justice "system"? Tom
Posted by: LongT | Dec 5, 2007 4:38:58 PM
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