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Detainees Should Have Lawyers so Innocents Can be Released

Law Professor Rosa Brooks did an admirable job on the O'Reilly factor explaining why we should provide the Guantanamo detainees with lawyers. Crooks and Liars has the video. Newshounds has the full transcript.

How do we know if the detainee is an enemy combatant who according to Bush, Rumsfeld and O'Reilly is not entitled to the protections of the Geneva Conventions, or a taxi driver or unlucky Joe who was just in the wrong place at the wrong time and ended up getting kidnapped and sold to U.S. forces by others who lied and said they were fighters?

How do the innocent make their case if they are not allowed a voice with which to do it? Answer, they can't. That is why the Muslim world is justified in its criticism of us for holding prisoners for three years without charges, without lawyers and without a neutral forum - an Article III judge - in which to be heard.

As Amnesty International has said, these are the rights we should afford to every detainee at Guantanamo:

"the right to humane treatment, to be informed of reasons for detention, to have prompt access to a lawyer, to be able to challenge the lawfulness of the detention, and to be presumed innocent until proven otherwise."

O'Reilly and Brooks sparred over the number of detainees who have been released and sent home without charges. The military says that as a result of the 558 hearings it recently was forced to provide 520 detainees, (hearings at which they were not allowed to have lawyers present) 38 were found "no longer" to be enemy combatants and released to their home countries.

That's not the operative number. In April, 2004 the military announced (pdf):

As of 5 April 2004, 134 detainees have been released from Guantanamo.

According to this October 4, 2004 Washington Post article, at that time, there were

202 Guantanamo Bay detainees who have been returned to their homelands. Of that group, 146 were freed outright, and 56 were transferred to the custody of their home governments. Many of those men have since been freed.

On April 20, 2005, the Washington Post reported 18 additional detainees were released.

The release brings the total number of detainees to leave Guantanamo Bay to 232; 167 have been sent home and released, while 65 others have been transferred to the custody of foreign governments including Pakistan, Britain, Morocco, France, Russia and Saudi Arabia.

Currently, there are about 550 detainees (pdf) at Guantanamo. But these are not the same 550 that arrived three years ago. Continuously, some have been released and others have been brought in to take their place.

If you take the 550 detainees currently at Guantanamo and add to that the 232 who have been released, you get 782 total detainees. Of those, 167 have been sent home without criminal charges and released into the general population. That's more than 20% of the detainees.

The first prisoners to be released from Guantanamo were seven Pakistanis in October, 2002:

The U.S. military is planning to release seven Pakistanis being held at the Guantanamo Bay, Cuba, prison within the next few days, having concluded that they are not terrorists and have no value for intelligence purposes, government officials said yesterday. The move would be the first release of a significant number of detainees since the U.S. Navy jail began housing them in January.

In December, 2003, Time Magazine reported in Inside the Wire thatthere were 660 detainees being held and 140 of them, 20%, were scheduled for release.

Here are Amnesty International's latest numbers.

USA’s “war on terror” detainees, April 2005
(approximate totals/estimates)(11)
USA: Naval Brig, Charleston, South Carolina2 “enemy combatants”
Cuba: Guantánamo Bay naval base520
(234 releases/transfers)
Afghanistan: Bagram air base300
Afghanistan: Kandahar air base250
Afghanistan: other US facilities (forward operating bases)Unknown: estimated at scores of detainees
Iraq: Camp Bucca6,300
Iraq: Abu Ghraib prison3,500
Iraq: Camp Cropper110
Iraq: Other US facilities1,300
Worldwide: CIA facilities, undisclosed locationsUnknown: estimated at 40 detainees
Worldwide: In custody of other governments at behest of USAUnknown: estimated at several thousand detainees
Worldwide: Secret transfers of detainees to third countriesUnknown: estimated at 100 to 150 detainees
Foreign nationals held outside the USA and charged for trial4
Trials of foreign nationals held in US custody outside the USA0
Total number of detainees held outside the USA by the US during “war on terror”70,000

To me, the most shocking number is that last one: The U.S. has held 70,000 detainees around the world in its War on Terror.

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    I agree wth alot of what Ms Brooks said but I also agree with some of what O'Reilly said, but I think O'Reilly did better in the presentation.

    Re: Detainees Should Have Lawyers so Innocents Ca (none / 0) (#3)
    by DawesFred60 on Sat Dec 17, 2005 at 12:59:25 PM EST
    Just remember if one guy inside that camp is innocent it would show the world that our government is working for justice, but that will never happen.

    Punishing the innocent for the crimes of a handful is the whole design of this genocide. Making as much of a worldwide stink as possible is the unsubtle reverse-psychology of Bush's method. With enemies, comes the supposedly endless justification for war. Since there aren't enough enemies, Mission Accomplished. Attack and kill the innocent homeowners --the very 'moderates' which some can't find -- torture the grocers, the taxi drivers, the poor schlubs in any culture. And, here's the ugly-beauty part, weed out the very people who have risen to government attention as those who will fight, nonviolently, for change. Hussein's enemies become George's enemies, only George has the power of the US nation in his unelected hands, and Hussein is a has-been. Oh, how the gloating laughter of these US-state terrorists has echoed off the walls where Lincoln sat.

    "I think O'Reilly did better in the presentation." Why, because shouting 'they want to kill us' is a better 'presentation'? O'Reilly red-baited the issues all the way down the line. If that is a 'good presentation,' then you don't deserve your citizenship. O'Reilly is using hate images to sell hate crime. He is no better than Bin Laden, only so far as we know, Bin Laden doesn't use a vibrator in his anus. They are BOTH racists, and both endorse violence against the innocent.

    Re: Detainees Should Have Lawyers so Innocents Ca (none / 0) (#6)
    by ppjakajim on Sat Dec 17, 2005 at 12:59:26 PM EST
    et al - Aren't lawyers being used during the on going tribunals? And isnít the issue the fact the tribunals aren't using standard US justice system rules of evidence? And don't we all understand that it would be impossible to do that? And wouldn't most countries execute those convicted? PIL - Uh, dude they they didn't crash airplanes into the WTC because they love us.

    Spinner Jim: et al - Aren't lawyers being used during the on going tribunals? Yes, though on the prosecution side only. And isnít the issue the fact the tribunals aren't using standard US justice system rules of evidence? No, the issue is that the Administration did everything in its power for the past three years to prevent any kind of tribunal. The tribunal was required by the Geneva conventions. Now the tribunal system they have come up with is deeply flawed allowing no significant representation for the detainees. It is much deeper than rules of evidence. And don't we all understand that it would be impossible to do that? No, many of us think it is possible to put on fair trials or tribunals for the detainees. Whether the rules would match the US Justice system is not as important as whether the structure and design of the tribunals is dedicated to correctly identifying the actual combatants and hostiles who are probably among the detainees. It's inconvenient and expensive to do this right and we hate to see the Defense budget going into justice instead of daisy cutters, but maybe it needs to be done. And wouldn't most countries execute those convicted? Perhaps, but we are not most countries. We are the United States who has in the past prided itself on one of the most enlightened and fair justice systems in the world. And of course, your question presupposes that decisions of the tribunals are convictions. They are not. They are initial decisions about whether a detainee should continue to be held or be released. Most of the world does not execute at a probable cause hearing. It would be safer to do executions at probable cause hearings and it would be an effective means of population control, but it's still not a good idea.

    "PIL - Uh, dude they they didn't crash airplanes into the WTC because they love us." No, Jim, they crashed airliners into the WTC because Rumsfeld put NORAD out of commission, and Bush was busy reading a children's book. NO justification for attacking Iraq as part of a conspiracy with Tony Blair's gov't has appeared. Boohoo for you all, because war crimes is what you accomplished -- that and the death of 1656 good soldiers. What a bunch of heroes you rightwing liars are.

    Re: Detainees Should Have Lawyers so Innocents Ca (none / 0) (#9)
    by ppjakajim on Sat Dec 17, 2005 at 12:59:27 PM EST
    PIL writes - "No, Jim, they crashed airliners into the WTC because Rumsfeld put NORAD out of commission, and Bush was busy reading a children's book." Not the most irrational defense of the terrorists, but in the top 5. CA writes - "Yes, though on the prosecution side only." My memory says the tribunals are governed by the UCMJ, which requires the accused to have representation. CA writes - " The tribunal was required by the Geneva conventions." Actually, no. And we have been through this before. Read Section 5, par. 2. If there is no doubt the person doesn't meet the requirements, no tribunal is required. CA writes - "Whether the rules would match the US Justice system is not as important as whether the structure and design of the tribunals is dedicated to correctly identifying the actual combatants and hostiles who are probably among the detainees" And you have proof this is not happening? CA, we executed what, three out of the 4 Germans captured during WWII trying to slip into the country? We are allowed, and should, defend ourselves against such people, after a tribunal is held. I think the decision to hold or release says whether or not these people are terrorists, not whether or not there is probable cause. After all, if they are held, isn't the reason that they have found to be terrorist? And haven't terrorists/guerillas historically been executed? I mean, we haven't picked them up because we think they robbed up a Quicki Mart.

    Jim, you should probably stick with the original line that the Conventions are quaint and obsolete. We have been over this in great detail. The bottom line is that people are entitled to the protection of the Conventions. If a doubt arises as to whether that protection is appropriate, the protection continues until such time as a competent tribunal determines that protection of the conventions does not apply. You have stood the meaning and intent of the conventions on their head when you move to the position that people are not entitled to the tribunal's determination if there is doubt. The thing works exactly the other way. As to executing people sneaking into this country, how many or what percentage of the people we have seized and held incommunicado do you think were "caught sneaking in the US" as opposed to "caught sneaking into their own homes, villages, and communities." You facilitate war crimes through your complicity and argument. The worst of it for me is that my grandchildren and their grandchildren will pay the price of your stupidity and meanness. That kind of irritates me.

    Re: Detainees Should Have Lawyers so Innocents Ca (none / 0) (#11)
    by ppjakajim on Sat Dec 17, 2005 at 12:59:27 PM EST
    CA - And you should stick to understanding English, and not assign your beliefs as facts. Article 4 defines who are qualified as POW's under the GC. Article 5 says: "The present Convention shall apply to the persons referred to in Article 4..." It then says: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." If there is no doubt that they are not protected, then you don't need a tribunal. As to your concern for your grandchildren you should not think of yourself as unique in that regard. As for your irritation, a dusting of Gold Bond powder on the afflicted areas should help.

    Exactly backwards, Jim. The presumption is that anyone being detained on the basis of a belligerent act is covered under Article 4. Should doubt arise as to the coverage, then the tribunal is required to resolve the matter one way or another. You see, the nature of the Conventions is to guarantee reasonable treatment of detainees at its core. I assume you will never understand the conventions or their purpose at this point. It's not politically expedient to your views. No values, no principles, just political hackery, smoke, and mirrors.

    History will not look kindly on folks who make excuses or took part in these detentions, tortures or killings. My spiritual view does include a day of reckoning of sorts, but I do not necessarily understand how that helps us as God's hands and feet in the world prior to the day when all may be made known to us.