A Way Out Of The Gitmo Mess

Guard tower at Camp X-Ray, Guantanamo Bay US Naval Base, Cuba, Prisoner, Hand Cuffs, Generic
Attorney Andrew Cohen analyzes legal issues for CBS News and

This is the second in a two-part series about the fate of the Guantanamo Bay detainees. In Part I, CourtWatch focused upon the government's overstated description of the prisoners as "killers." Part II offers one legal and political solution to the problem of how to fairly and quickly process the men out of the base.

Now that we know, from the military's own records, that the vast majority of Guantanamo Bay detainees are not the "killers" the administration has told us they are, we still need to decide as a nation what to do with the men.

Last week, congressional hearings were held to discuss and debate how far the executive and legislative branches are willing to go to comply with the judicial branch's declaration last month, in the form of a Supreme Court decision, that the prisoners must be given significant due process rights.

On the one hand, we have the administration, which wants Congress to explicitly endorse the military's existing plan to process the men through a "military commission" that seeks to dramatically limit the prisoners' ability defend themselves. On the other hand, we have some influential members of Congress, and not a few legal and military scholars, who believe that the detainees can be fairly (and safely) prosecuted using a slightly modified version of the Uniform Code of Military Justice, which our military uses to discipline our own soldiers.

The White House says the Gitmo prisoners are not just ordinary soldiers or low-level criminals, but terrorists, too. As a matter of raw prudence, the administration argues, not to mention legal and historical precedent, terror suspects should not be allowed a legal process that allows them access to anything other than a shadow of the evidence against them.

Congressional critics say that existing courts-martial rules already take into account sensitive, national security-type matters and that they can easily be adapted to both protect classified material from being revealed and give the prisoners an opportunity for a meaningful defense.

Here is my plan. It is as simple as it will be considered controversial, but all it really does is allow the "facts on the ground" to dictate the legal course we ought to take.

For that to occur, first, Congress and the White House must acknowledge that the evidence varies greatly against and among the detainees. There is solid and serious evidence against some of the men. And there is little against many others. The law and our policy must recognize these vast differences. Some detainees clearly do pose a threat to our safety. Many others, it is clear from the government's own evidence, do not.

Because the evidence against the men falls along a sliding scale, just as it does with criminal defendants in the regular world, it seems to me that the procedures employed to prosecute the detainees should "slide" as well.

We sometimes handle felony prosecutions differently from misdemeanor prosecutions, right? Capital defendants get more appellate review than do other murder defendants, right? Our nation's "equal protection" jurisprudence may, in the right circumstances, permit unequal treatment of people who are differently situated. Put another way, the law doesn't require the government to treat differently-situated people the same.

Let's get into specifics to see how it plays out. According to "The Guantanamo Detainees: The Government's Story," a research project conducted by two attorneys (one of whom is a Seton Hall professor) for the detainees, the government last year questioned the prisoners as part of a "Combatant Status Review" to determine whether the men ought to be considered as "enemy combatants." Military officials also had (and have) access to the other evidence against the men, of course. The factual basis for our compromise rests upon the pillars of this raw data compiled at Gitmo.

As noted in Part I of this series, and according to the Seton Hall report, 55 percent of the Gitmo detainees were deemed by our own government "not to have committed any hostile acts against the United States or its coalition allies." Only "8 percent of the detainees were characterized" by our military "as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda at all and 18 percent are (sic) have no definitive affiliation with either al Qaeda or the Taliban."