Waiting for a Nation of Laws to Follow Its Laws: Ann Woolner

Oct. 15 (Bloomberg) -- Say you were picked up and hauled off to prison in a faraway land and kept there with no lawyer, no formal charge against you, no way to show your innocence, no contact with family.

Your jailers deprive you of sleep, strip you, force you into uncomfortable positions for hours at a time and sometimes bring out menacing dogs while asking you questions.

A year passes in this way, and then another, with no end in sight. Finally, after 2 1/2 years, the highest court in the land says you have rights your jailers denied you.

They must give you a fair chance to show you are being wrongly held, the court says, relying on one of the country's oldest and most cherished legal principles.

Ah! This is a nation of laws, after all, you think.

Lawyers willing to help want to come meet you, but the jailers insist on watching and videotaping any such meeting and reading whatever notes your lawyers take. Not surprisingly, the lawyers decline.

Meanwhile, a federal judge sets deadlines for your jailers to explain your imprisonment or else release you. Deadlines pass with no meaningful explanation.

And now, 3 1/2 months after the highest court ruled, the government is still making some of the same claims that the court ruled out.

The Funny Part

Here's the funny part. The country's leader keeps saying his is one of the freest nations in the world, dedicated to the rule of law.

The leader, President George W. Bush, says his goal is ``spreading freedom and liberty around the world.'' You wonder if this makes the rest of the world happy or nervous.

Welcome to America. Or, at least, welcome to the U.S. prison camp at Guantanamo Bay, Cuba, where 549 men are being held, some since early 2002, some for just a few weeks.

These are people said to have been caught in or near Afghanistan helping America's enemies in al-Qaeda or the Taliban. Many of them are quite dangerous, indeed. The Pentagon says they include an explosives trainer and bomb designer for al-Qaeda, for example.

And yet, many of the detainees are no threat, officials unofficially acknowledge.

About 10 percent of the detainees are ``really dangerous,'' while ``the rest are people that don't have anything to do with it, don't even understand what they're doing there,'' an unnamed Central Intelligence Agency operative who worked undercover at Guantanamo told Frontline in a documentary aired on the Public Broadcasting System this spring.

The Wrong Place

``A substantial number of the detainees appeared to be either low-level militants'' or ``innocents in the wrong place at the wrong time,'' an unnamed senior CIA analyst concluded in a 2002 analysis the New York Times reported this summer.

Since the camp opened that year, 202 detainees have come and gone after varying periods of incarceration.

And yet, as recently as this month, the Financial Times quoted the deputy commander of the camp, Brigadier General Martin Lucenti, as saying the majority of Guantanamo detainees don't belong there. The military quickly issued a statement saying Lucenti was misquoted.

The issue isn't whether to let enemies go free but whether this nation will follow its essential legal principles and try to cull the innocent from the dangerous.

``An unchecked system of detention carries the potential to become a means for oppression and abuse,'' the Supreme Court ruled in June, in the case of Yaser Hamdi, a U.S. citizen.

Indefinite Confinement

Not even a war on terror gives the administration a ``blank check'' to declare whoever it wants an ``enemy combatant'' and leave him in prison indefinitely with no judicial review, the high court's lead opinion said.

Forced by the Supreme Court to either try him or let him go, this week officials released Hamdi to his family in Saudi Arabia after he renounced his U.S. citizenship and agreed to travel limits. What does it say about the quality of evidence against him that authorities opted not to put him on trial?

As for Guantanamo, lawyers for 63 detainees are challenging their detentions in federal court in Washington, now that the Supreme Court has said they could.

``We're taking extraordinary steps to make sure these folks have their day in court,'' Terry Henry, a Justice Department lawyer, told senior U.S. District Court Judge Joyce Hens Green at a hearing this week, according to Knight Ridder's account.

Legitimate Worries

As it should, the government worries that the detainees could use their lawyers as unwitting conduits of coded information.

As they should have, the detainees' lawyers months ago proposed ways to protect their lawyer-client privilege without compromising national security, methods used in spy cases, terror cases and the like. The government won't agree, and the stalemate drags on, says Thomas Wilner, a partner in Washington's Shearman & Sterling and a lawyer for 12 Kuwaitis at Guantanamo.

Henry told the judge the administration is complying with the Supreme Court by holding status review hearings at the prison camp. So far, one detainee has been released through that process out of 156 hearings held.

The other side calls the military hearings shams, not a neutral forum offering the accused a meaningful chance to rebut military claims.

And so, it goes on. And on.

The Pentagon says intelligence it has gathered from Guantanamo detainees has saved the lives of U.S. soldiers and citizens alike. That's not the only result.

``Guantanamo has become a symbol around the world of America's willingness to abandon its principles in the face of fear,'' says Wilner. ``It's become a symbol, also, of how the terrorists can win.''

To contact the writer of this column: Ann Woolner in Atlanta at awoolner@bloomberg.net.

To contact the editor responsible for this column: Bill Ahearn at bahearn@bloomberg.net.