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Liberty guantanamo { October 24 2002 }

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October 24, 2002
Chicago Daily Law Bulletin

By Douglass Cassel

America's press and public waste little time pondering the plight of some 600 men now imprisoned for up to 10 months and counting at the Guantanamo Naval Base in Cuba. True, none is charged with any crime. None has access to lawyers, judges or hearings. But who cares -- they're terrorists, aren't they?

Or are they?
Many of their families protest their innocence. Most of the men -- all foreigners -- were captured in or near the armed conflict in Afghanistan last year. Under the Geneva Conventions, where there is doubt as to their status, they are supposed to be brought before a "competent tribunal" to resolve any questions.

But they have not been. Early this year President Bush decided, in effect, that there was no doubt in any of their cases. He simply declared them all to be "unlawful combatants." And that was that.

Several prisoners' families then filed suit in federal court in Washington. Claiming their men were in or near Afghanistan for family, religious or humanitarian reasons, they asked for writs of habeas corpus, so that courts can review the legality of the imprisonments.

This summer the judge ruled that federal courts have no jurisdiction over foreigners held outside U.S. sovereign territory -- even though our lease with Cuba gives the United States exclusive jurisdiction over Guantanamo. However, she declined the government's request that she take "judicial notice" that the prisoners are unlawful combatants.

Now the government is asking an appeals court, if it takes jurisdiction, to accept the presidential determination that they are unlawful combatants as conclusive and binding, without hearing any evidence or conducting any judicial review. Under the government's theory, it can continue to imprison the men, without any judicial review whatsoever, until the war on terrorism is over -- however long that may take.

A Pentagon announcement this week, however, undermines the government's claims. At least seven Guantanamo prisoners, we now learn, will soon be returned to Pakistan because there are no criminal charges against them, they are of no intelligence value and they pose no danger to the United States. More such releases are expected to follow.

While this news is welcome, it raises troubling questions. Were the men innocent all along? Would judicial review have secured their release sooner? How many more men in Guantanamo are innocent? Should not the Pentagon's detentions -- based solely on secret intelligence information and presidential say-so -- be subject to judicial review?

According to the Washington Post, Pakistani security officials advised the United States this August that the men now to be released had no involvement with terrorism before being captured last year. In September USA Today quoted a secret Pakistani intelligence report as saying that "U.S. authorities have agreed that most of the Pakistanis are innocent and they were at the wrong place at the wrong time."

Yet the release of the men now may have less to do with their innocence -- apparently conceded by all sides -- than with Washington's desire to help its pal, Pakistani military ruler Pervez Musharraf. In recent elections in Pakistan, Islamic fundamentalist parties did surprisingly well. Musharraf needs to show some payoff for his cozying up to Washington. The timing of these releases could not be more convenient.

Pakistanis are not the only prisoners whose claims of innocence may be true. Based on their investigations, Kuwaiti officials say that at least nine of 12 Kuwaitis held in Guantanamo are innocent. According to the Post, Kuwait's ambassador to the United States says, "We're concerned maybe that there are innocent people in jail, so let's put them on trial."

All this should remind us of two lessons of history.

First, habeas corpus has been a pillar of British and American law for centuries and for good reason: liberty cannot be entrusted to the sole discretion of executive and military officials, but is safe only where there is independent judicial review.

Second, liberty is especially at risk in wartime and other crises. Public pressure and protective zeal prompt the government to lock up our supposed enemies without due process of law.

Only now do we learn that some prisoners -- solemnly declared "unlawful combatants" by the president -- have been unjustly imprisoned. How many more may be innocent?

Nearly 600 men are still locked up at Guantanamo. The sooner their cases are reviewed by courts, the sooner America will have been true to its promise of liberty under law.

By Douglass W. Cassel Jr. Cassel is director of the Center for International Human Rights at Northwestern University's School of Law, where he also serves as a clinical associate professor. The views expressed here are solely those of the author.

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