Presumption of Innocence; Guantanamo Detainees Should Get Due Process

The Washington Times (Washington, DC), December 27, 2004 | Go to article overview

Presumption of Innocence; Guantanamo Detainees Should Get Due Process


Byline: Nat Hentoff, THE WASHINGTON TIMES

Like the town meetings of yore, newspapers' letter pages include criticisms of higher officials - and their responses. I welcome the chance to answer the charge by Bryan G. Whitman, deputy assistant secretary of defense for public affairs, in a Dec. 9 letter in The Washington Times, that I have been egregiously unfair in claiming that the Defense Department has defied a Supreme Court decision requiring due process for detainees at Guantanamo Bay.

At issue is a June 24 Supreme Court decision, Rasul v. Bush, which directly concerns the Defense Department's Combat Status Review Tribunals (CSRTs), bodies that are deciding whether detainees, some held for more than two years, are actually enemy combatants.

Mr. Whitman oddly fails to mention this particular ruling, in which Justice John Paul Stevens, writing for a 6-3 majority, pointed out that these prisoners are on "territory over which the United States exercises exclusive jurisdiction and control." Accordingly, Justice Stevens continued, "aliens held at the base, no less than American citizens, are entitled to involve the federal courts' authority." And, in contesting the legality of their detention as enemy combatants, the detainees have the right to due process, the basic fairness central to our constitutional rule of law.

For the Defense Department, Mr. Whitman charges that I have confused these CSRTs with the separate military commission at Guantanamo trying detainees for war crimes. Actually, I made clear in my first paragraph that there were two separate proceedings underway, and I focused on the very procedures Mr. Whitman writes about.

In responding to my point that these detainees do not have lawyers but instead are provided military officers without legal training as their "personal representatives" Mr. Whitman says that, after all, these CSRTs are "not legal proceedings." But, since he also says that the Defense Department is indeed giving them due process, how is due process possible if they don't have a lawyer? Moreover, if they are found to be enemy combatants, they can be permanently imprisoned. They are even denied most of the crucial, purported evidence against them because it is classified. And what isn't classified is often hearsay alleged information.

Crucially, the prisoners are not presumed innocent, a basic starting point of due process under our Constitution. Instead, at these hearings, they have to prove they are not enemy combatants. Not surprisingly, in 207 decisions on prisoners who have gone before these Combatant Status Review Tribunals, only two have been released. …

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