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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Lawyers may be among the least competent people to judge good and evil since our system is adversary based. There would be no criminal defense bar if lawyers refused to represent the "evil." To many lawyers the other side is automatically evil. To others, only the failure to receive a fee is evil.
For most Americans, the issue is not good or evil but reasonable risk avoidance with respect to Gitmo enemy combatants. Can we risk letting them go? If they kill after being released, who should be blamed? Who would you rather be alone with in a dark room? American Soldiers? Currently imprisoned Gitmo detainees? Too many Americans cannot fathom that there is anyone in the world who would slice their head off without a second thought. There are. You can choose to be a pacifist and let your own head be separated from your body. But you can't elect to offer up the heads of others or their children.
Posted by: Agricola | Dec 5, 2007 4:40:38 PM
It's all about wthether (sp) these "combatants' get the same rights as we do. Hopefully our Supreme Court wil see through this. Tom
Posted by: LongT | Dec 5, 2007 4:42:08 PM
The above comments are an excellent example of taking what is mainly an issue of legal procedure (what standard of proof should we use, what should the rules of evidence be, etc.) and completely removing it from its legal context. While there are legitimate substantive (policy) issues here, addressing them outside of their legal context misses much of what makes this debate complex (and I think Ms. Greenburg was attempting to say that this is a very complex issue).
Posted by: cn | Dec 5, 2007 4:48:03 PM
"Man who thinks" said: 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!
My response: everyone thinks. Man who thinks just does it badly. Your not seriously suggesting that before GWB, the world was our BFF? You must be (1) terminally niave (2) Communist or (3) Another democrat who wants to be president. You said the world hates us for our policies. Exactly what policies are those? We have direct evidence of the kind of policies our enemies would enforce. E.g. is your wife currently forced to wear a burkha? When is the last time she was beaten by the magistrate because she uncovered her elbow, or her shoulder? How many gay friends do you have that were hung by the government for being gay? Are those the policies your defending of our enemies?
Posted by: Bob | Dec 5, 2007 4:53:38 PM
Congress last year passed a law prohibiting the courts from consideration of habeus corpus cases from Gitmo internees-Congress has always had the power to remove any matter from judicial review via specific legislation doing so. This raises the question of why there is any hearing at all today, and why Congress(and the Executive branch,too) is too cowardly and incompetent to enforce it's own legislation, via the impeachment and removal from office of any judge who attempts to consider the matter and civil and criminal sanctions against arrogant blowhards like Tom Wilner.Reading the linked article at the top of this article shows what a depraved traitor Wilner is; despite the cowardly backtracking by the DoD hack-and his superiors, especially including the 'commander in chief'-last year, Americans should make themselves aware of exactly who is flacking for the Gitmo thugs, what law firms they're associated with and who those firms major clients are, and vigorously express themselves to all of them.The collapse of ordinary Americans respect for the country's legal system is the fault of oily shysters like them as well as power-mad judges and bullying law enforcement members.
Posted by: Rantly McTirade | Dec 5, 2007 4:55:29 PM
Jan,
You join a long tradition of liberals that arrive late at the scene and see a pitiful, helpless criminal sincerely expressing their innocence AND totally out of context or proximity from the reason they are now at GITMO. Even an axe murderer seems nice when he no longer has the axe in his hand, his victims are dead or moved on and the blood has been cleaned up a half a world away.
These people were captured in a place they shouldn't have been probably doing bad things, they are not citizens, they do not have the same rights as a US citizen that I do AND I RESENT THAT ULTIMATELY I PAY FOR THEIR DEFENSE AT INCREASED TAXPAYER COST BECAUSE OF LEGAL DO GOODERS LIKE YOU.
For you to represent the view of these enemies on an equal parity with the views of the dedicated members of our military that defend all of us is an unconvincing display of moral relativism ("Evil"...Give Me a break).
Sadly, like so many lawyers nowadays you cannot discern the difference between right and wrong. All you see is a case to win.
Posted by: Blue State Mark | Dec 5, 2007 5:07:01 PM
So, what is the the solution? Give the detainees all of the rights and privileges of citizenship, let our left-wing court system find them all innocent, and relocate the lot to their own rent-subsidized neighborhood in Washington, D.C. where they can become entrenched as civil servants or members of the national press corps.
Posted by: Mr. Logic | Dec 5, 2007 5:09:36 PM
Just read the darned transcripts from the tribunals. Most of these murderers admitted their involvement, even bragged about it when they first got nabbed. Now ACLU types have come in and taught them how to use the media to beat the rap. Pretty disgusting. Those guys are the real deal, the face of terrorism and murder.
Posted by: Ray Robion | Dec 5, 2007 5:20:27 PM
Guantanamo Bay
Detainees
As of November 10, 2007, approximately 305 detainees remained at Guantanamo Bay, Cuba.
On November 10, 2007, DoD announced the transfer of fourteen detainees from Guantanamo Bay, Cuba, to Saudi Arabia.
On November 04, 2007, DoD announced the transfer of eleven detainees from Guantanamo Bay, Cuba. Eight detainees were transferred to Afghanistan, and three to Jordan.
On October 16, 2007, DoD announced it would grant access for a civilian defense attorney to meet with Majid Khan, a Pakistani national and one of 15 high value detainees held at the detention facility in Guantanamo Bay.
Posted by: Neil | Dec 5, 2007 5:29:43 PM
Powell's Letter to Pentagon on Gitmo 'Strongly Worded'
Sunday, May 04, 2003
Neil, What is your point with this link? Powell's a fool? The remaining screened detainees are bad? All the GITMO detainees are innocent?
Posted by: Blue State Mark | Dec 5, 2007 5:30:30 PM
The important thing to remember is that the detainees are POWs with less protection than any "uniformed" captured soldiers under the Hague and Geneva Conventions; in fact, we could have sammarily executed these clowns under international law on the spot!
To imagine that battlefield captures deserve "constitutional protections" is absurd. Where do you draw that line? Can you imagine our soldiers shouting out Miranda warnings over the din of gunfire in a firefight? Simply absurd.
These terrorists are right where they need to be since we were nice enough to forego our right to shoot them on sight as illegal combatants (non-uniformed combatant).
They are still under those provisions--and POW status is not a requirement even today. Yes, we could just shoot them. So, if you worry and fret now--imagine your angst if you knew the actual laws that are usually cited in the defense of these terrorists? Ha!
So, forget the US citizen's rights under the constitution. These clowns need not apply. They are lucky to be where they are, and haven gotten there--we risk much by tinkering with the rules at this late date. The military treated them better than they had to, but not to the level that you or I could expect under martial law in our own country--and that is why we cannot now retoractively apply our constitutional rights to these guys---they'd have to be released on the spot under that standard. That is ironic, since under international law, we could just drag them up against the nearest wall...
Posted by: Joe M | Dec 5, 2007 6:04:01 PM
I like the analogy of the 3 generations. It says that you have to husband what assets you have or you will lose them. If you don't believe the due process and justice are assets we need to husband in the US, then a future President Decider will be glad to relieve you of your remaining rights and principles. The courts need to protect us ALL from the excesses of the wackos in the White House.
Posted by: JDK | Dec 5, 2007 6:07:43 PM
How come the Europeans have been able to try and convict - or release the suspects that they captured. WHAT ARE WE AFRAID OF? I thought that we were tough big and strong. Are we afraid of a rag tag bunch of guys who are NOT an existential threat to the US and never will be?
Posted by: JDK | Dec 5, 2007 6:10:54 PM
to mangrovemama
-- that's just warped!
Posted by: JDK | Dec 5, 2007 6:12:02 PM
This first thing to notice is that over half of the detainees have been released. It seems military intelligence may have cast too wide a net over 42 countries to “locate” the original 800 detainees. Better safe than sorry? Maybe, but knowing that your round-up is going to produce a LOT of false positives, don’t you have an obligation to treat these people humanely as defined in the Geneva Convention and determine their status with all deliberate speed? I think so and think what we’ve done is the exact opposite. We’ve tortured them and imprisoned them for over 4 years. I don’t think we should torture any of the prisoners. And we should have made a greater effort to determine who was mistakenly (arrested/captured/kidnapped) detained with much greater urgency.
The argument of whether they are more like spies than soldiers and therefore don’t have Geneva Convention protection aside, casting such a wide net that produced hundreds of bad identifications should obligate America to treat them humanely and determine their disposition promptly.
I take no issue with the position that the detainees do not have the same rights as Americans under our Constitution. Detain them as prisoners of war, and give them fair trials under he code of military justice – or write a new code of terrorism suspect justice but se it up so it can produce a fair result.
I remember reading that habeas corpus has been suspended in the US. Will this case address that unconstitutional decision by the Bush White House? Anyone of us could be snatched up and toted off to Gitmo, WITHOUT the right to petition the government for a hearing as to whether the government has probable cause. On this one, I’m with the right-wingers who think the government is incompetent and therefore should not be trusted with this kind of unbridled authority.
Posted by: Neil | Dec 5, 2007 6:22:44 PM
A lot of the difference comes from whether one sees the detainees as criminals or enemies at war. Criminals get trials and Due Process. America (and other countries) have never given POWs trials. Here we have people who are enemy combatants which are not exactly POWs but not exactly criminals.
Pre-9/11, America treated terrorism as a crime. See first WTC bombing. Post-9/11 the country choose to treat terrorism as an act of war. Our dealings with the enemy are conducted with that in mind.
Posted by: Adam C | Dec 5, 2007 6:41:24 PM
Hey, Lay off Ms. Greenburg - she's not saying what you think she's saying.
Posted by: William | Dec 5, 2007 7:03:05 PM
Jdk...hey nice jab at bush. Irrelevant of course to the article here but using facts, exactly what rights and principles have we lost up to this point.
European trial speed? Maybe 9-11 doesn't concern them as much. Why should we care about speed anyway as the GWOT will go on for years.Is there a pending prisoner exchange we need to rush to meet?
Existential threat to the US? Probably not to countries but what about people harmed in the future by released extremists? You don't care about individuals?
Posted by: blue state mark | Dec 5, 2007 7:12:36 PM
Let me get this straight: these guys are captured on battlefields killing the "infidels" and you believe they were just in the wrong place at the wrong time. Well, I guess it's hard to argue that being on a battlefield shooting at Americans probably is being at the wrong place at the wrong time. Now they are paying for their poor judgment.
Posted by: Goldberg | Dec 5, 2007 7:30:18 PM
Our mistake has been treating them humanely, we should have, as permitted under the rules of war, shot them as partisans without flag or uniform. Then we wouldn't have to deal with these sniveling liberal sympathizers who want to confer civil rights on these terrorists.
Posted by: Glen | Dec 5, 2007 7:31:26 PM
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