Closing Argument: National disgrace at Guantanamo Bay

By Thomas P. Sullivan
Jenner & Block

In times of national crises, perceived or real, many of us lose confidence in the ability of democratic institutions to protect the nation, concerns often reflected in the actions of government policymakers. Frightening times present a test of our commitment to principles found in the Declaration of Independence and Constitution, and taught in our schools.

We often slip our moorings, and revert to conduct we condemn when engaged in by other countries, for example, incarcerating Japanese-American citizens during World War II, and spreading fear of Communism during the McCarthy-House Un-American Activities Committee era. As a result of Sept. 11, 2001, this has happened again.

In October 2001, based on a claim that we were pursuing Al-Qaeda, the administration ordered an invasion of Afghanistan. Our forces seized hundreds of men from various countries many purchased for bounties and transported them to the prison located at Guantanamo Bay on the eastern tip of Cuba.

My partners Jeff Colman, Pat Bronte, and David Bradford and I have represented 19 prisoner-clients from Saudi Arabia, Yemen, Iraq, and Libya (13 have been returned to their native countries). We have visited them on multiple occasions.

To appreciate how far we as a nation have departed from our commitment to decency, democracy, and fair play, it is necessary to visit the prison and listen to the prisoners (usually through an interpreter). Appalling is as good a word as any to describe what our government has done and is still doing.

No reason for incarcerating these men has ever been established by introduction of evidence that they are guilty of wrongdoing against our government or anyone else.

Their ”hearings” were kangaroo courts: The prisoners were brought before anonymous tribunals with interpreters but no defense lawyers. Summary charges were read, and the prisoners were asked to respond. No supporting proof was introduced. Prisoners were not allowed to view evidence, cross-examine witnesses, or present evidence or witnesses. The tribunals could consider undisclosed classified evidence. Here are typical excerpts:

Tribunal: ”While living in Bosnia, the Detainee associated with a known Al-Qaeda operative.”

Detainee: ”Give me his name.”

Tribunal: ”I do not know.”

Detainee: ”How can I respond to this?”

Tribunal: ”The classified information cannot be shown to you due to national security reasons. By you participating today, we want to hear your story as well. We haven’t seen any information prior to this.”

Tribunal: ”As to the second request, you asked us to check with the Saudi police in Riyadh. It could prove you were on a humanitarian mission while on leave. — I denied that request as well, because an employer has no knowledge of what their (sic) employees do when they are on leave.”

Belying the government’s unproved assertions that the prisoners must be kept locked away because they are dangerous terrorists, most have been returned to their native countries, without apology, compensation, or explanation as to why they were held for years in virtual isolation, and (needless to say) without publicity from our government. More than 275 remain imprisoned.

Prison conditions are deplorable. Most prisoners are housed in small cells; prevented from contact with fellow prisoners; allowed little reading material in their native languages, no radio or television, and no adequate exercise or medical services. Food in Styrofoam containers is shoved through small openings. Although mental instability has become a serious problem, with repeated suicides and attempted suicides, nothing has been done to alleviate the causes and treat these people as human beings.

My partners and I doubt that any of our clients were or are criminals or terrorists. They were apprehended, in confused and volatile times, and assumed to be hostile and dangerous. They have treated us in a cooperative and friendly manner, but it comes as no surprise when they express loss of faith in our judicial system. We sympathize with indeed, we share their disillusionment with the way the United States has treated them. Our bedrock principles of criminal justice reject preventive detention except for the mentally disturbed.

Accordingly, we say: Each of these men should promptly be given a hearing before an independent judicial officer, with a lawyer if he desires, at which the government is required to establish that there is a valid legal justification for continuing to keep him in prison, and that he will be formally charged with a crime by a specified date. If this is not done, he should be released.

The root problem has nothing to do with closing Guantanamo Bay prison. It is that our government has jailed people from countries with which we are not at war, in intolerable conditions, declaiming them to be terrorists, but without establishing that they have committed crimes. Unless we comply with our own principles, we will continue to be subject to justifiable charges that we are hypocrites, and the object of derision in the international community.