Thomas B. Wilner

Two recent stories about Guantánamo from two of the country's most respected news organizations highlight just how little attention the American press has paid to the facts about the extralegal prison, and the general lack of understanding about the core legal and Constitutional issues involved. 

The Washington Post recently published a front-page article entitled, "Afghan war’s approaching end throws legal status of Guantánamo detainees into doubt." The main point of the article was certainly correct: The end of the Afghan war will end the legal basis for detaining most of the prisoners at Guantánamo. The reason: Wars create an exception to the normal rules. Normally, under our legal system, people may be imprisoned only if they are charged, tried and convicted. Things are different in times of war. As US Supreme Court Justice Sandra Day O'Connor pointed out in Hamdi v. Rumsfeld, one of the landmark rulings related to Guantánamo, it is permissible in times of war to detain people who fight against you, but only "for the duration of the particular conflict in which they were captured." The purpose of detaining them is not to punish them criminally, but to keep them out of the conflict. Once the conflict in Afghanistan ends, those captured in that conflict may no longer be detained as enemy combatants. That fact has been known for years. It was apparently newsworthy now only because the press had never reported it before.

In reporting that fact, the Post article also repeated and, unfortunately, perpetuated two fallacies about Guantánamo. First, it repeated the myth that the president is "[b]locked by Congress from releasing or transferring many of the remaining 164 detainees" from Guantánamo. That is not so. Congress had passed legislation effectively blocking the president from transferring detainees to their home or other countries, but it then amended the law two years ago to allow the president to waive those restrictions. As Carl Levin, the Chair of the Senate Armed Services Committee, pointed out, that amendment "provides a clear route for the transfer of detainees to third countries.” The president has simply not used it. 

The article also repeated another myth - that there are some "four dozen men [at Guantánamo] deemed too dangerous to release but who are ineligible for trial because evidence against them is inadmissible." That line has been repeated time and again by the press, and never examined. It is simply not true. The government's basis for detaining each of the men at Guantánamo is now publicly available on WikiLeaks. Members of the press can examine the evidence themselves. They should. There are clearly some bad guys down there - generally acknowledged now as fewer than 20. These men can all be tried. The only thing preventing their conviction is the Military Commission System itself, which is totally untested and ineffective. They would all have been convicted long ago in our federal courts. An examination of the government's basis for detaining the other men at Guantánamo shows that the reason they can't be tried is not because the evidence against them is inadmissible, but simply because it is so flimsy and speculative that it would be laughed out of any federal court in the country.

Meanwhile, last Sunday, CBS News' 60 Minutes included a piece by Leslie Stahl on Guantánamo that focused on whether Khalid Sheikh Mohammed, the admitted mastermind of the 9/11 attacks, and other accused terrorists at Guantánamo, could get fair trials. It discussed, for example, whether the confessions made by these men long after their torture had ended could be admitted into evidence in their Military Commission trials. These may be important issues for the Guantánamo detainees who will be tried, but that is only ten to 15 percent of the detainees there. The overwhelming majority of the detainees are not accused of terrorism and will never be charged or tried. In fact, more than half of them – 84 of the 164 still there – were cleared for release almost four years ago by a special task force made up of the nation’s top law enforcement, intelligence and security officials. Yet, they remain imprisoned.

During Ms. Stahl’s walk-and-talk through a cell block at Guantánamo, one of the detainees dramatically yelled out: “Please, we are tired. Either you leave us to die in peace - or tell the world the truth. Let the world hear what’s happening.” CBS didn’t identify that prisoner, and apparently didn’t try to learn why he said what he did.

The prisoner was Shaker Aamer, a Saudi citizen and, before his incarceration, a permanent resident of Britain. He was cleared for release not only by the special task force four years ago, but even earlier by the Bush Administration. He has been imprisoned at Guantánamo now for almost 12 years, more than half of that time after he had been cleared. That is the real tragedy of Guantánamo - not how we try those few who will be charged, but why we continue to hold the many others who will never be charged and have been cleared. The press should do a story on that.

In the opening seconds of the 60 Minutes piece, Stahl's main character, Brigadier General Mark Martins, makes a statement which Stahl leaves unchallenged – that the similarities between justice in a civilian court and at Guantánamo "swamp the differences": "The accused is presumed innocent," Martins declares as they stroll alongside coils of razor wire penning the men that then-Vice President Dick Cheney forever tainted as "the worst of the worst." But how can there be a presumption of innocence at Guantánamo, when even innocent men who have long been cleared remain imprisoned?

It would be a good thing if the press examined the evidence itself. And it would be a good thing if it would pay more attention to the continuing injustice at Guantánamo which is so contrary to our nation's fundamental values and remains such a blemish on our reputation around the world. 

Thomas B. Wilner is head of the International Trade & Investment Practice at Shearman & Sterling LLP in Washington, DC. He is counsel of record to Guantánamo detainees in Rasul v. Bush, decided in June 2004, in which the Supreme Court ruled that the detainees have the right to habeas corpus, and counsel of record in Boumediene v. Bush, decided in June, 2008, in which the Supreme Court held that the Guantánamo detainees’ right to habeas corpus is protected by the U.S. Constitution.

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