This is the first in a two-part series of columns about the legal status and fate of the detainees at Guantanamo Bay. Part I highlights underreported information about the detainees. suggests a solution to the legal problem of processing the men through some sort of military trial.
"We are looking for a process where we can bring the killers to justice," Attorney General Alberto Gonzales told reporters Thursday afternoon when asked to discuss the Administration's ever-evolving plans to process out of Guantanamo Bay, Cuba the hundreds of detainees who have been kept there since the early years of the war on terror. "Congress and the executive branch will have to decide if it's appropriate to provide those kinds of protections to killers."
The Attorney General, and the rest of the Bush Administration, want you and me to believe that the detainees at Guantanamo Bay are, indeed, "killers" or, as President Bush once put it, the "worst of the worst." So they repeat the charge, endlessly, effortlessly, in order to create the impression that the matter of the detainees' culpability and the menace they pose is incontrovertible, a fait accompli. In this dehumanizing way, our government believes that the American people will be more willing to support a series of harsh trial procedures that will give the men virtually no chance of getting anything close to a fair shot at justice. If they are terrorist "killers," in other words, they don't deserve due process.
But for the most part this talk of "killers" is a lie— a monstrous one-- and the Attorney General and all of the other men and women who give voice to it know it. According to the government's own evidence, compiled by military officials who evaluated the case against each Gitmo detainee, the vast majority of the remaining prisoners are nothing close to being "killers." We know this because two attorneys (one of whom is a law professor at Seton Hall University and both of whom represent detainees at Gitmo) have reviewed the government's "Combatant Status Review Board Letters" and concluded in a thorough analysis published in February that, among other things, "the large majority of detainees never participated in any combat against the United States on a battle field."
The lawyers' report is based upon a review of "written determinations the Government has produced for detainees it has designated as enemy combatants… prepared following military hearings commenced in 2004… to ascertain whether a detainee should continue to be classified as an 'enemy combatant.'" The written evidence created by the military, the lawyers note, does not identify any of the detainees by name and is no more "precise" than the government's categories permit. But the documents clearly are specific enough to refute the Attorney General's calculated attempt to dehumanize the men more than they already have been.
"Fifty-five percent of the detainees are not determined (again, remember that the "determination" was made by the government itself) to have committed any hostile acts against the United States or its coalition allies, the Seton Hall report concludes. "Only 8 percent of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda at all and 18 percent have no definitive affiliation with either al Qaeda or the Taliban."
One detainee was deemed to have committed a "hostile act" when he fled a US bombing attack. Another detainee deemed to be "associated with the Taliban" who "engaged in hostilities" despite the fact that he was apparently a "cook's assistant who fled a Northern Alliance attack and then surrendered to the Northern Alliance." Of course, there could be more evidence against these men than was evident from their files. On the other hand, if any of these men were known to be "killers" you would think that would make the file, too.
There is more in the report entitled "The Guantanamo Detainees: The Government's Story," by Professor Mark Denbeaux and Joshua Denbeaux. "Only five percent of the detainees were capture by United States forces," the report concludes, while "86 percent of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody." Why is this important? Because, the report concludes, "the detainees captured by Pakistan or the Northern Alliance were handed over to the United States as a time in which the United States offered large bounties for capture of suspected enemies."