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The talk this summer has been of an Afghan prisoner at the Guant�namo Bay prison camp, Salim Hamdan, who admits he was Osama bin Laden’s driver. Last month the Supreme Court decided that if Hamdan is to be hanged for a war crime, first he ought to be charged with one and then tried by a court-martial. This ruling so startled the republic that senators and representatives vowed to overturn it, scrambling like so many Queens of Hearts to convene committee hearings and rewrite the laws — sentence first, verdict after! It was strange two weeks ago to watch the administration mouthpieces trooping up to the Hill and even old stalwarts like former Solicitor General Ted Olson being recalled to read from the script. All this anxiety for 10 men at Guant�namo charged with war crimes? Did anyone tell you folks about the other 460? For in the end, history will see Hamdan as little more than a curiosity — one of the few actually charged with a crime or, at any rate, what the Bush administration said was a crime before the Supreme Court looked at the case. Hundreds of others haven’t been charged with anything and never will be, although it is possible they will live for the rest of their lives at the base. Why? THE 1 PERCENT PRISON In his latest book, The One Percent Doctrine, journalist Ron Suskind chronicles the administration’s actions in the roiled and panicked months that followed the 9/11 attacks. The doctrine, which he lays at the feet of the vice president, was this: If there were a 1 percent chance of something bad happening, the administration would take action. If there were a 1 percent chance torture might flog information from a suspect, use it. If there were a 1 percent chance that Iraq was a threat, invade it. And if, in the intertribal confusion of post-bombing Afghanistan, there were a 1 percent chance someone might be an enemy, round him up and send him to Guant�namo. It was a chaotic time, and no one troubled over niceties. Were these people enemy soldiers or were they criminals? There was a 1 percent chance they were somebody, so off they went to be interrogated at the 1 percent prison. That was more than four years ago. The 10 men charged with what the Bush administration says are war crimes actually represent less than 1 percent of the total population that has been through Guant�namo. For the rest, the administration has tried to adopt the model, sort of, of enemy-soldier detention. Now, the rules for imprisoning enemy soldiers are found in the Geneva Conventions and the Uniform Code of Military Justice. But this has always been an imperfect fit. The problem lies not just in the details of Common Article 3 or any of the other specific provisions of the conventions or federal law. The problem lies in the concept itself. Both the treaty and our own statutes recognize that the enemy soldier is a person of honor. He’s not a criminal; he hasn’t done anything wrong. He is supposed to be treated as we would treat our own soldiers: fed, housed, afforded medical care and recreation — and even paid.
• Pushing Back on Military Justice (July 17, 2006)• Senate to Hold Hearings on Hamdan Ruling (July 10, 2006)• Enemies in Court (July 10, 2006)• Supreme Court Invalidates Gitmo Tribunals (June 29, 2006)• High Court Skeptical of Detainee Law (March 28, 2006)• Legal Elite Fight Bush on Detainees (March 27, 2006)• Enemy Combatant Case at High Court (September 26, 2005)• Hamdan v. Rumsfeld (U.S. Court of Appeals for the D.C. Circuit opinion)• High Court Says No to Accused Terrorist (March 9, 2005)• Military Commissions and the War on Terror (Package of stories)

To be sure, an enemy soldier might also be a criminal, as he might have committed a war crime. But when that happens, there must be charges and evidence and trials, and as we have seen, fewer than 1 percent of the Guant�namo detainees have been charged. Members of Congress can tinker with the law all they want, and they will never turn Guant�namo into a Geneva-compliant prisoner-of-war camp. They will never turn it into Fort McKay, the POW camp in South Boston where enemy Italian soldiers — men who had shot to kill Americans — were housed during World War II and, according to press accounts of the day, passed notes to American sweethearts through the fence. Guant�namo will never become the Hearne camp in Texas, where Nazi prisoners organized an orchestra. So vilified are the Guant�namo prisoners that Congress will never get its mind around thinking about them as persons of honor. THE OTHER 99 PERCENT The problem with the Bush administration’s doctrine is not the 1 percent, it’s the other 99. If torture yields 1 percent good information, it yields 99 percent bad, as we learned from Ibn al-Sheikh al-Libi, an al Qaeda trainer who told his torturers there were weapons of mass destruction in Iraq. If you chase a 1 percent will-o’-the-wisp into Mesopotamia, there is a 99 percent chance of setting off civil war, of 20,000 American dead and wounded, of a crippling an economy and powering up a magnet for terrorists. And if you round up and send to a supermax prison on a lonely island outpost hundreds of the poor, the pathetic, and the innocent, there is a 99 percent chance that some of them, entering their fifth year, will lose hope and try to kill themselves. As we now know, there is a 100 percent chance three of them will succeed. Who are the 99 percent, now in their fifth year in Guant�namo? Not soldiers. Only 5 percent were captured on a battlefield, according to Defense Department allegations. Eighty-six percent were sold to U.S. forces by Afghan and Pakistani tribesmen who cashed in leaflets for substantial bounties. The overwhelming majority are not even accused of having been part of an enemy army or engaging in hostilities. In many cases the prisoner “bore arms” only in the sense that, like most everyone else in a country rife with brigandage, he possessed a firearm. Generally, this was in the home. Long before we invaded, the number of Kalashnikovs in Afghanistan exceeded the number of adult males. There is no allegation in many Guant�namo cases of battlefield activity, certainly nothing that would legally justify the holding of a prisoner of war. Some of the cases would be comic, were they not so lawless. One of my firm’s clients (released only last month) had been imprisoned for four years before Guant�namo by the Taliban as an enemy of its regime. Under the 1 Percent Doctrine, the enemy of our enemy is . . . our enemy. Guant�namo prisoners are routinely labeled, as they were in Washington two weeks ago, “terror suspects.” “Suspect” is a resonant word, and it conjures in the American mind a definite and false picture of the Guant�namo prisoner as a person who has been accused and is awaiting trial. Yet when one consults the Defense Department records, one finds not only that none of them is awaiting a “terror” trial — none has even been accused of engaging in terrorism. According to military records, many of these men claimed they were cases of mistaken entity or local tribal grudges. They offered to prove this with witnesses. The military unfailingly announced that the witnesses could not be located. Recently, a Boston Globe reporter obtained some of these records. At this point the trail was years old. Nevertheless, she spent two days on the telephone, located the witnesses, and obtained compelling evidence of innocence, some of it from high officials in the current, U.S.-sponsored Afghan government. Other cases collapse on the scrutiny of a schoolchild. One Afghan is alleged to have been part of a London terror cell in 1998. Except that in 1998, he was 12 and poor and had never left his village, never mind flown to Britain. Cases like this abound at Guant�namo. SIMPLE HEARINGS For four years now the lawyers have been asking for simple habeas corpus hearings. They don’t want a jury. They don’t want anything fancy — just a chance to ask a federal judge to say whether their clients really are enemy soldiers. The Bush administration has turned somersaults to avoid these hearings, and the district courts have indulged it with stays that in many cases are more than 18 months old. The acid test — which my firm and others have experienced — is this: Of our clients who were actually able to schedule a real hearing on their claim, all have been released. Of those who have been blocked by the administration’s stays, all remain at Guant�namo. Indeed, among prisoners at Guant�namo today are men even the military concedes are not enemy combatants. (My firm represented two such men who were held for more than four years and then, on the eve of oral argument in their appeal, quickly shipped to Albania.) The 99 percent are in their fifth year now. If the proposition is that they’re “soldiers” for “terrorism” and may be held so long as a “war” on terrorism is pending, then our whole concept of justice is in for a rough ride. Without hearings, they can’t attack the claim that they’re soldiers. And they have no hope of ever leaving at war’s end. Terrorism is a common noun. Though we struggle against it, it has been with us and will be with us for all time. As we see in Iraq, terrorism thrives on opposition. A “war” against it by definition can never be “won” and therefore will never end. Thus, prisoners in the “war on terror” may be held forever. Guant�namo is a place where human beings will be held without hope of release; in other words, a gulag. None of this makes legal sense. Certainly none of it makes moral sense. But I imagine history’s judgment of our nation’s conduct in this matter will be unsparing for another reason. The flip side of the 1 percent doctrine is the 99 percent corollary: Ninety-nine times out of 100 you will be wrong. If no just nation can tolerate the doctrine, no successful one can long survive the corollary. As Abu Ghraib and the news from Iraq and the Guant�namo suicides have all shown, there is a price for being wrong, and a devastating price for being wrong so often. What of Hamdan, the Afghan driver? As was once famously said of the Palestinian leadership, the Bush administration never misses an opportunity to miss an opportunity. Were Hamdan convicted by a duly constituted court-martial under the Uniform Code of Military Justice, we would all be confident in the result. But if he is to be convicted under a hastily conceived “commission,” his guilt will be a footnote to yet another account of American arbitrariness. At least abroad, the administration will risk martyring a bin Laden associate. That would be another blunder in this inept “war” against a common noun — a “war” whose prosecution continues to distract from and damage the necessary struggle against real enemies.

Sabin Willett is a partner in the Boston office of Bingham McCutchen, which represents several Guant�namo detainees who have brought habeas petitions.

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