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The “disappeared” of Guantanamo Bay, Cuba, have seen a bit of the light of day, recently. A senior official of the International Committee of the Red Cross recently criticized the detention of the more than 600 prisoners at Guantanamo as unacceptable because they are being held for open-ended terms without proper legal process. And on Oct. 12, a group of former American judges and military officials, including the U.S. Navy’s former judge advocate general, or top lawyer, filed papers asking the U.S. Supreme Court to intervene, arguing that “[t]he lives of American military forces may well be endangered by the United States’ failure to grant foreign prisoners in its custody the same rights that the United States insists be accorded to American prisoners held by foreigners.” These calls for action are long overdue, though the fate of those at Guantanamo is still uncertain. The “disappeared” of Guantanamo bring to mind the 30,000 who disappeared in Argentina’s “dirty war” from 1977 to 1983, as well as the 700 or so persons detained within the United States, post-Sept. 11, 2001, on immigration-related charges. A story in the New York Times on June 17 reported, “Argentine President Nestor Kirchner in less than a month in office has forced [to the forefront] the long dormant issue of justice for the estimated 30,000 people who disappeared during the ‘dirty war.’ ” Ironically, this story came on the same day that a sharply divided U.S. Circuit Court for the District of Columbia ruled that the U.S. Department of Justice “ was within its rights” when it refused to release the names of 700 or so people arrested for immigration violations in connection with the Sept. 11 attacks. The detainee-disappeared of Guantanamo were flown halfway around the world to be jailed at an American outpost on a Communist island in the Caribbean. No charges have been filed against any of them despite the fact that they have been in detention for almost 20 months. The Bush administration argues that not only are they out of sight, they are out of action, so they won’t be able to plan further terrorist acts. They say their status as detainees can continue legally for as long as our war on terrorism continues. But the president tells us this war could last a long, long time, leaving those detainees in a perpetual state of limbo. A legal nether world Meanwhile, their legal status is uncertain at best. At last report, the 600 Guantanamo detainees were being held in what one U.S. official called the “legal equivalent of outer space.” There have been more than 30 suicide attempts at Camp X-Ray and reportedly 5% of the detainees are being treated for psychological disorders. Generally, they are well fed, provided adequate sanitation and are allowed generous opportunities to practice their Muslim faith. To qualify for detention in Guantanamo, prisoners taken in Afghanistan had to meet any one of the following criteria: They had to be foreign nationals, they had to have received training from al-Queda or they had to have commanded 300 or more personnel. Application of these criteria by the military is beyond the reach of our courts, but it should not be beyond the reach of our conscience and fundamental notions of due process. The military dragnet that swept through Afghanistan, as well as the roundup here of Arabs with immigration violations, was motivated by real fear of threats to our national security. To be sure, those threats still exist both here and abroad. But there is little doubt that some of these detainees, these “disappeared,” these out-of-sight and out-of-mind prisoners captured in Afghanistan may be victims of guilt by association or being in the wrong place at the wrong time. Maybe all of the detainees are guilty of conspiracy to commit terrorist acts against American interests. Maybe some of them were involved in the planning of the Sept. 11 attacks. Maybe our national security will be seriously compromised if they are sent home. Maybe, maybe, maybe. Either the government has the evidence to support specific charges against them, or it doesn’t. If the government has the evidence we should fully endorse prosecuting every one of the detainees to the fullest extent of the law, including imposition of the death penalty if warranted. If we don’t have a case, they should be released. It has been almost a year and a half; the clock is ticking on our commitment to equal justice under the law. For years, our government criticized the Argentine military dictatorship for massive human rights violations related to their “disappeared.” It is to be hoped that sometime soon we’ll do the right thing here for the “disappeared” on Guantanamo: Charge them or release them. Gerald D. Skoning is of counsel at Seyfarth Shaw’s Chicago office.

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