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An Open Letter To Jeh Johnson/General Counsel, Department of Defense

Posted: 02/02/09 12:05 PM ET

Dear Mr. Johnson:

First, let me congratulate you on your appointment to the esteemed and critically important position of General Counsel of the United States Department of Defense. As you know, an unfortunate legacy of the last Administration is that the Defense Department is charged with running the notorious detention facility located at Guantanamo Bay, Cuba, where my clients, Abdul al-Ghizzawi of Libya and Razak Ali of Algeria, have been held prisoner for nearly seven years. I write this letter to provide you with what I hope will be helpful advice to you; I write solely on behalf of myself, an attorney trying to best represent my two clients, and not on behalf of any other Guantanamo Attorney.

I must say I am pleased with the President's clear commitment to close the Guantanamo Bay detention facility. While I believe that the one-year time frame in his Executive Order is unnecessarily long (and indeed, the purpose of this letter is to provide advice that will greatly accelerate that time-table), it is understandable for President Obama to be cautious, given the numerous pronouncements made by the Bush Administration about the purported dangerousness and threat presented by the Guantanamo detainees. Of course, the very same Bush Administration saw fit to unilaterally release over 2/3 of those detained, and has designated a significant percentage of those men it is still holding as being held without continued basis to do so as they pose no threat (and never did).

While the President has shown great courage and initiative on this issue so far, more will be required to complete the task of closing Guantanamo. Indeed, your job will be harder than it might otherwise be, simply because you cannot trust your predecessors. The widely reported "disarray" of files supposedly documenting the justifications for holding the detainees should tell you better than I can that you should not take anything told to you by the Bush Administration at face value; its credibility is simply non-existent. More useful information is readily available from a number of public sources that I link to on my personal web-site (The Guantanamo Blog).

Perhaps the simplest advice I can give you at the outset is what you should not do. One suggestion now circulating is to immediately move all the detainees (other than those to be immediately released) to the American mainland. I believe that this would be unnecessarily traumatic on men already held arbitrarily for years; it would be better to simply move the detainees to less restrictive parts of Guantanamo Bay itself, and begin the counseling programs (such as the kind that Saudi Arabia has undertaken with respect to its own returning nationals) to ensure an effective transition of these men to their long overdue freedom.


The "Easy" Part

There are a number of prisoners (because of the prior administration's lack of transparency we can never be sure of exactly how many) who have already been designated "not enemy combatants." They continue to be held for no reason whatsoever and many under the cruelest of conditions. They should be freed immediately. As the rest of the world is standing by waiting to see us take responsibility for Guantanamo, you should start by releasing the Uighur detainees into the United States where we would grant them provisional asylum consistent with the plan approved by Judge Ricardo Urbina. Although I know the Justice Department does not come under your purview you should suggest to Attorney General Holder that the DOJ drop the mean-spirited, last-minute appeal of Judge Urbina's order lodged by the Bush Administration, and simply comply with that order. It can become a model of how to deal with the remaining "not enemy combatants" who can either be returned to their home countries or else to friendly nations that have offered to help us.

The remainder of the prisoners should be almost as easily dealt with as that first group. This group, representing most of the remaining prisoners, happens to include both of my clients. It consists of those prisoners that the government has not seen fit to designate as "non-enemy combatants," but has decided it does not have sufficient evidence to charge with anything. In fact, if my clients are representative of this group (and I have reason to believe they are) there is nothing to charge them with. You will soon discover that most of these men are not even remotely within the legal definition of "enemy combatants," that is, apprehended in the course of military operations, or "picked up on the battlefield". Those who were not so apprehended, should be treated like the first group (that is, promptly repatriated to their own countries, third countries, or failing that, granted asylum under supervision of domestic human rights groups).

Even those few prisoners who actually were "captured on the battlefield"--like the famous Taliban cook we are now holding -- should, after this seven year period of arbitrary detention-- themselves be returned to their home countries. At this point, the balance of the much debunked premise that these are "hardened fighters" who would "return to the battlefield" when weighted against the diplomatic, moral and legal cost of continuing to hold these men favors simply adding them to the group to be promptly released with those "not" captured on the battlefield. (Again, a counseling program as described above could go a long way to ensure these men's smooth transitions into post-Guantanamo life.)

The "Harder" Part

Although my own clients do not fall within this group, I would not be serving you well without addressing those Guantanamo prisoners that the Bush Administration has been exploiting to justify the entire enterprise, those who could potentially be charged and tried. In many ways, this group is the most difficult to deal with because of how these prisoners have previously been treated by the Bush Administration, and how they have been portrayed in the media. We may never really know the truth about the guilt or innocence of these men. You must bear in mind that, of this group, two of the first three men for whom verdicts have been reached received very short sentences and have since been released. This is not insignificant: when fairly judged by members of the military's judiciary, even in a flawed commission system that most objective observers believe to be fundamentally unfair, even the allegedly very worst of the worst have been handed short sentences. This means that even those men who the Bush Administration has told us are "high value detainees," or are alleged to be "the 9-11 plotters," must be looked at with clear eyes and a very healthy dose of skepticism.

The easy answer is to refer this group (at most 10% of prisoners still at Guantanamo) for trial in American federal courts. However, I submit that this is not such an easy answer, and that it is almost certainly not the right answer. We can agree that no one wants to see the actual perpetrators of September 11th go unpunished. But this has been the problem with the Bush Administration's "answer" of trying to get "the truth" out of men by torturing them (and without doubt, these men have been tortured, as officials from Vice President Dick Cheney to "convening authority" Susan Crawford have conceded it). Given the taint of torture, we simply cannot be sure with any degree of reliability that we are actually even holding the actual orchestrators and perpetrators.

Some efforts of the Bush Administration, such as sending FBI agents to interrogate prisoners to try to get "clean" evidence were a cynical and downright un-American exercise that failed to acknowledge the fact that, once a man is tortured, one cannot obtain a truly free and voluntary statement from that man, let alone a reliable statement, ever again. This is why such mistreatment and torture is absolutely barred by the Eighth Amendment and utterly anathema in our judicial system. As former Naval Judge Advocate General Admiral Hutson famously said, "you can't un-torture them." Even if evidence not derived from torture and abuse (and predating these men's apprehensions) could somehow be assembled it is still inconceivable to imagine that men who have undergone years of torture in CIA "black prisons" or in the hands of foreign governments, could still be in a position to meaningfully assist in their own defense. Accordingly, there are two alternatives, neither fully satisfactory, but one clearly superior to the other.

Unfortunately, the inferior alternative is the one proposed by President Obama: trying Guantanamo detainees within the purview of either the federal courts or the existing military justice system. Most agree that the military commissions system has been an abject and unmitigated disaster, and ending it immediately is the best possible result. While there is certainly precedent to try individuals associated with the war on terror in the federal justice system, the cases of John Walker Lindh and Jose Padilla demonstrate the problems with this approach when it comes to men who have been tortured. In both of these cases, before their federal prosecutions, each was grievously mistreated, indeed, tortured, in the custody of the United States military. Though both were convicted (Lindh after plea, Padilla after trial), neither was a case where, because of the torture, either could reasonably and effectively participate in their own defense-- a fundamental underpinning of the ability to have a fair trial.

While federal courts can conceivably weigh the abilities of individual defendants to adequately assist in their own defense, and whether statements obtained by coercion or torture are admissible in court, this exercise would, by necessity, require the courts to directly consider the mistreatment received by these defendants. The federal courts, and the Justice Department, would be put in the extremely uncomfortable position of having to litigate the effects of prior abuse and torture of these detainees. Even if it is determined that these men can assist in their own defense, this would be the kind of determination that would not necessarily be perceived as "fair" either here or in other nations.

There, is however, a superior alternative. It is actually the one that most reflects President Obama's message of change and fresh starts. International structures, notably the International Criminal Court (ICC) in The Hague, and the ad hoc special tribunals for particular conflicts, already exist, and can effectively prosecute the alleged terrorists and September 11th masterminds, sort out the reliability of evidence against them, and do so without having to compromise the integrity of the American legal system in the process. (Of course that means we would have to "re-sign" the treaty recognizing the ICC but we should show our commitment to the rule of law and sign that treaty again immediately, and make the effort to ratify it.) Any convictions obtained by such international tribunals would have instant international legitimacy; and even acquittals would be less embarrassing than if obtained in the American judicial system. While not a "perfect" outcome, the Bush Administration's failure to behave in accordance with civilized norms for nearly eight years has placed us all in a difficult position, and given the alternatives, this is probably the best of them.

Again, please accept my best wishes for you to implement the President's policy of closing Guantanamo as expeditiously as possible.

Sincerely yours,
H. Candace Gorman
See my blog at:
http://gtmoblog.blogspot.com/