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The first military detainee will soon be freed from Guantanamo Bay with what amounts to a formal pardon — an official ruling from the Pentagon’s own review tribunal that, after being held for nearly three years, he is not an enemy combatant after all. Asked last week at a Pentagon press briefing whether the released Guantanamo detainee would receive any compensation from the U.S. government, Secretary of the Navy Gordon England, who administers the review process, replied, “I wouldn’t think so.” But attorneys for detainees held at the U.S. naval base at Guantanamo Bay say that the federal government may be forced to pay. And even those who believe the law does not require the government to dole out money say it might be the right thing to do. “If he was unlawfully incarcerated for all this time, I think he has some pretty strong legal arguments available to him,” says Barbara Olshansky, assistant litigation director of the Center for Constitutional Rights, which represents more than 50 detainees in military custody. “I think it’s going to depend on the individual. People are always worried what the world is going to think when they ask to be recompensed.” More conservative legal experts maintain that any suits brought on behalf of released military detainees would face significant, perhaps insurmountable, hurdles. David Rivkin Jr., a partner in the D.C. office of Baker & Hostetler and a veteran of the Ronald Reagan and first Bush administrations, says there is no obvious transgression for which to hold the government accountable. “The very fact that he has been captured and treated as an enemy combatant and it turns out he wasn’t may not be enough to support a legal claim,” says Rivkin. “There’s no evidence that the government has acted outrageously or arbitrarily.” The detainee, whose name and nationality have not been disclosed, has been removed from the prison camp to transitional housing and told that he will soon go home. His release results from a finding made by three military officers that the detainee did not engage in hostilities against the United States or allied nations. The Pentagon began holding such hearings, known as combatant status review tribunals, in July in response to recent Supreme Court rulings addressing detentions in the war on terror. The Bush administration expects to complete tribunals for all 585 detainees held at Guantanamo Bay by the end of 2004. As of Sept. 8, hearings had been completed for 55 prisoners, and final decisions had been reached in 30 cases, of which only one prisoner was determined not to be an enemy combatant. Supporters of the administration say the prisoner’s release indicates that the system is working. Meanwhile, critics view the determination as a stunning admission of error. At the Sept. 8 Pentagon briefing, England stopped short of admitting that mistakes had been made in the case. “I’m not sure it’s that clear-cut,” England explained. “He was determined to be an enemy combatant at different times. We now have more data available [and] a different group of people came to a different conclusion.” He later stated, “These people were all involved somewhere. They didn’t just end up here. They were on the field of battle or in some situation that got them into this.” Roughly 150 detainees have previously been released from Guantanamo Bay, including some who were determined not to be enemy combatants through earlier screenings not connected to the formal status review process, England said. In more than a dozen states and the federal system, individuals convicted of crimes who are later found to be innocent can seek financial redress from the government. Under California law, former inmates are entitled to as much as $100 for every day of their incarceration. In Iowa, released prisoners can collect $50 per day and lost wages up to $25,000 per year. The federal system caps compensation for any duration at $5,000. However, pending legislation would increase available federal compensation to $50,000 per year of incarceration. Elisa Massimino, D.C. director of Human Rights First, says international law requires the United States to provide some means for those wrongfully deprived of their freedom to seek redress. But, for the United States to meet that treaty obligation, there most be “more judicial oversight,” she says. “In the current system there’s no guarantee that these errors will be corrected in a timely manner,” Massimino says. “It’s not acceptable to say we’ll keep people in detention for years and then when we feel like it we’ll come up with a system to sort out the sheep from the goats.” POTENTIAL REMEDIES Among the remedies available to detainees released from Guantanamo Bay are suits against private contractors under the Alien Tort Statute, claims against U.S. government officials under the Federal Tort Claims Act, or so-called Bivens actions, which allege civil rights violations by federal agents. The Alien Tort Statute, adopted in 1789 by the first Congress of the United States, extends federal court jurisdiction to violations of the “law of nations.” The relatively obscure provision has been used recently by human rights activists to sue foreign government officials and corporations accused of human rights abuses, and the law was invoked in a recent class action brought on behalf of prisoners allegedly abused at Abu Ghraib in Iraq. The U.S. government itself would presumably assert sovereign immunity as a defense, if sued under the statute. The Federal Tort Claims Act, enacted in 1946, establishes an exception to the government’s sovereign immunity in “circumstances where the United States, if a private person, would be liable.” However, the act does not apply to claims that stem from uniquely governmental functions, such as combat activities, or those that arise in a foreign country. Those limitations under the Alien Tort Statute and the Federal Tort Claims Act have led some civil rights lawyers to contemplate Bivens actions, so-called after a 1971 Supreme Court case that established a cause of action for plaintiffs alleging abuses by U.S. government actors. Traditionally, Bivens actions have been used to redress allegations related to law enforcement and criminal justice — such as claims of illegal searches or police misconduct — not military detentions. While each legal instrument presents obstacles, recent Supreme Court decisions may strengthen the detainees’ hand. For instance Justice John Paul Stevens — writing for the majority in this year’s challenge to the detention of several Guantanamo Bay detainees — specifically stated that the detainees are not barred from bringing claims under the Federal Tort Claims Act and the Alien Tort Statute. “I don’t think [Stevens] would have mentioned it in that way if he didn’t mean to signal that those held at Guantanamo might have claims under those statutes,” Olshansky says. Hogan & Hartson partner Gregory Garre, who worked in the Office of the Solicitor General at the Justice Department from 2000 to 2004, says the administration could launch very compelling defenses to any claim from a detainee. “This is an area, military detention, where people during past wars haven’t successfully maintained legal claims,” Garre says. In the 1944 case Korematsu v. United States, the Supreme Court upheld the internment of Japanese-Americans during World War II, stating, “We cannot — by availing ourselves of the calm perspective of hindsight — say that these actions were unjustified.” While the Court has since divorced itself from this ruling — and the Bush administration has consistently resisted any comparison between the current military detentions and the internment of the Japanese-Americans — the decision in Korematsu remains a symbol of judicial deference to the executive branch during wartime. Decades later, in 1988, Congress created a fund to pay all surviving internees $20,000. While to many the current situation seems less egregious than the imprisonment of Japanese-Americans during World War II, observers on both sides of the Guantanamo issue agree that there is no legal barrier to prevent the government from voluntarily compensating released prisoners. “It would be very nice if they paid the people released at least as much as they paid the bounty hunters for capturing them,” says Shearman & Sterling partner Thomas Wilner, lead lawyer to 12 Kuwaiti detainees at Guantanamo Bay. Baker & Hostetler’s Rivkin says he has no problem with paying detainees as a goodwill gesture. “I personally think it would not be a bad thing as long as it’s understood this is not an admission of any wrongdoing,” Rivkin says. “It would be a humane and proper thing to do.”

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