Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
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."
Military officials on their forms "described each prisoner's nexus to" Al Qaeda and /or the Taliban. According to the Seton Hall report, sixty percent of the men were only "associated with" a terror group. Thirty percent of the men were deemed to be "members of" a terror group. Only eight percent of the detainees were deemed as "fighters for" a terror group. The report notes that even the definitions of "associated with" and "members of" are ambiguous. This statistic also refutes the Attorney General's lamentable label for the men. Being "associated with" the Taliban might be a bad career move but it doesn't necessary make a person a "killer" or a threat to our national security.
And, finally, there is this. According to the report, to support conclusions that some of the men are "enemy combatants," military interrogators "cited as proof" evidence such as the fact that the men possessed Casio watches and wore "olive drab clothing." One man was classified as "an enemy combatant" because he "traveled with and shared hotel rooms with" a member of the Taliban government. The point is not to dispute the classifications. They speak for themselves. The point is to highlight the vast gulf between what kind of men we are holding in Cuba and what kind of men our government wants us to believe that they are.
Does the Seton Hall Report dismiss completely the evidence compiled by military officials? Absolutely not. "The evidence satisfactory to the Government for some of the detainees is formidable," the lawyers state. "For this group, the Government's evidence portrays a detainee as a powerful, dangerous and knowledgeable man who enjoyed positions of considerable power within the prohibited organizations. The evidence against them is concrete and plausible." However, the Report concludes "there are only a very few individuals who [were] actively engaged in any activities for al Qaeda. For example, 11 percent of detainees allegedly met with Bin Laden. Eleven detainees (out of more than 500, remember) "swore an oath" to him.
Are these detainees the "killers" that the Attorney General is talking about? If so, the government ought to say so, and prove it, and then stop referring to all of the detainees in that manner. If not, then the Attorney General should be required to explain just which detainees he is talking about when he talks about the "killers" the feds want to dispatch so economically that they are willing to violate the Constitution to do so. And if the Seton Hall report is wrong, in whole or in part, the government should say so too, and explain how those "Combatant Status Review Letters" really say something other than what the lawyers say it does. Amidst all this Washington talk about "deferring" to the "expertise" of the military it's time the politicians put their money where their mouths have been.
To correct the record in this fashion—to give lie to the lie, if you will— is not to condone the action of the detainees or to suggest that those who have committed crimes or engaged in terrorism shouldn't be punished. Of course they should be. But that is a far cry from calling a group of men "killers" when the vast majority of them clearly aren't. The great national debate over the fate of the men—and the fate of our nation's laws in a time of war-- demands far more candor and precision, and far less cheap rhetoric, than what the Attorney General offered the other day.