A Year and Holding

The Longer We Wait, The Worse We Look

By Thomas Wilner, Washington Post Sunday, December 22, 2002; Page B01

The Bush administration told us originally that the men in orange jumpsuits being herded into small cells at Guantanamo Bay, chained and blindfolded, were all dangerous terrorists who threatened our national security. It is now clear, however, that at least some of the detainees were taken there by mistake.

The facts surrounding the initial captures are themselves murky. Many of the men were not picked up as a result of any scalpel-like investigation into the terrorist organizations, but rather were turned over to American authorities by Pakistani and Afghani tribesmen in exchange for substantial financial bounties. U.S. officials have acknowledged both publicly and privately that some of the prisoners were simply "in the wrong place at the wrong time." At least four have been released. The remaining captives have been in jail for almost a year now, with no legal process to give them a chance to present their case.

The government has argued that the U.S. courts lack jurisdiction to hear lawsuits involving the detainees because these men are foreigners held at a location outside the United States. But this is not simply a case of legal technicalities. These detentions raise profound questions that ought to be of concern to all Americans -- and the longer the detentions persist, the more troubling the questions become.

In the immediate aftermath of the terrible events of Sept. 11, 2001, it was understandable that the government had to act swiftly in sweeping up everyone who might possibly have been involved. But the need for haste has passed, and administration officials admit that some are innocent. A formal legal process -- not some sort of internal and secret procedure -- must be instituted to sort out those who were involved in hostile activity against the United States from those who were not.

The availability of an impartial tribunal to review the detentions is fundamental to the rule of law and to American ideals. Our founding fathers recognized that government officials, no matter how well-intentioned, can at times be overzealous, and that the deprivation of an individual's liberty must therefore always be subject to dispassionate and impartial review. We believe in that principle not only because it is fair, but also because it provides the best assurance that the process will achieve the correct results -- punishing the guilty and not the innocent.

Is this basic principle one that we should sacrifice in the war on terror? I think not. I agree with Rep. Dick Armey (R-Tex.). In October, he criticized the Justice Department for its "lack of regard for personal civil liberites in America" and said it makes no sense to save ourselves from international terrorism only to sacrifice these fundamental principles. The same argument applies to the Guantanamo detainees.

Some may ask, however, why foreigners deserve these protections. There are a number of reasons: First, it is right. The rule of law assures the integrity of our processes and of our government's actions. The world's respect for our nation around the world is based not only on our might, but also on our principles. We are supposed to be the good guys who adhere to those ideals. Equally important, we have championed the rule of law and due process rights for individuals around the globe because it is in our self interest. We are all foreigners outside our borders. We want to make sure that our sons and daughters who go abroad cannot be jailed arbitrarily without access to their families and some impartial tribunal. We want to make sure that our soldiers who go into combat are protected not only by their guns, but also by the rules of the Geneva Conventions.

For example, when a U.S. military aircraft was downed in China last year, President Bush immediately demanded, "These U.S. airmen should be allowed to communicate directly with their families." How credibly can we make that demand if we deny those very rights to others? What precedent is set when the United States, the champion of due process and the rule of law, itself disregards those principles?

It is fair to ask whether the war on terrorism has changed the ground rules, requiring us to sacrifice some of our principles in the interest of national security. Clearly, this is a difficult and unusual war. We face a dangerous and amorphous enemy. But we have been in wars before, and we have faced grave threats to our national security before. It would be hard for me to tell my father, who lost two brothers in World War II, that this is a more dangerous war, or to imagine telling the friends I lost in Vietnam that this is a more terrible conflict. In previous wars -- World War II, the Korean War, the Vietnam War and the Persian Gulf War -- we always held the people we captured in accordance with the rule of law and the Geneva Conventions. This war should be no different.

We can do everything we need to do to protect our national security without abandoning the rule of law. But if we fail to abide by it, we undermine our stature in the world community. We endanger our citizens and our troops abroad. And we compromise the very principles we are fighting so hard to defend.

President Bush stated last spring in his commencement address at West Point: "The 20th century ended with a single surviving model of human progress, based on non-negotiable demands of human dignity, the rule of law, limits on the power of the state . . . and equal justice. . . ."

Sticking to those principles is most difficult in times of crisis -- and most important.

Thomas Wilner is a Washington attorney representing the families of the 12 Kuwaitis detained at Guantanamo Bay.

© 2002 The Washington Post Company

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