Sabin Willett

Judging detainees on the facts

By Sabin Willett
November 30, 2008
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EARLIER this month, US District Judge Richard Leon ruled in the case of six Bosnians held at Guantanamo Bay. One is Lakhdar Boumediene, the lead petitioner in last summer's Supreme Court decision restoring the rights of Guantanamo detainees to a habeas corpus hearing. So Judge Leon gave him that hearing, and Boumediene won. The judge ruled that he is not an enemy combatant.

Boumediene himself was not there. He and the other Bosnians were listening at Guantanamo. When the hearing was over, the MPs switched off the monitor. Then they took Boumediene back to his isolation cell in the solitary confinement prison at Guantanamo's Camp 6, where he remains today.

Leon's ruling was the second habeas judgment to follow the Supreme Court mandate. He ordered five Bosnians released, and upheld the detention of a sixth. A month ago, in the first habeas judgment, district Judge Ricardo Urbina ordered 17 Uighurs - Chinese Muslims - released.

Twenty-three cases have now been heard. The president has lost 22 of them.

This was a disaster, Attorney General Michael B. Mukasey wrote in the Wall Street Journal the next morning. It meant terrorists were being released, and a compromise of the nation's war-fighting ability.

As one of the lawyers in the Uighur case, I had to scratch my head. Mukasey wasn't in court with us that day, but his deputies were, and the point of the ruling - which was based on facts, not public relations - is that they aren't terrorists. They aren't the enemy. The nation's war-fighting capability isn't involved at all.

Mukasey was undeterred. The problem, he wrote in the Journal, is the rules. We need new rules.

New rules? Neither decision had anything to do with rules. When finally it reached the deadline for telling the judge its case against the Uighurs, the government abandoned it. We won't contend that they are enemy combatants, it wrote. The Bosnian case was similar. For four years the government asserted, and the men denied, that they had plotted to bomb an embassy. At last the day came to tell the judge the facts - which Judge Leon, a Bush appointee, permitted the government to do in secret. "We won't proceed with that theory anymore," said the government. This is nothing new. When forced to justify its "war on terror" detentions to judges, the government doesn't bring cases, it drops them. In 2004 it argued that Yaser Hamdi was so dangerous that he mustn't see his lawyer. A federal judge scheduled a hearing. The government dropped the case and sent Hamdi to Saudi Arabia.

So what rule is Mukasey asking America for - a rule that lets the government hold a man on the basis of a case it drops? He mistakes us for a small and frightened people.

In the administration's waning days we begin to hear another whispering campaign geared for a small and frightened audience. It now works its way around Congress and the think tanks. "What if they really are terrorists - what then?" This mistakes us Americans for someone else. We always "know" the captives on TV are terrorists, too. But television is not the real world, evidence is, and Americans can tell the difference. If the last eight years have taught us anything, it is that reality makes for better government policy than does fantasy. The rule of law has worked in 107 terrorist prosecutions conducted in our federal courts. And it worked in the courtrooms of Judges Urbina and Leon.

When the nation looked in the mirror on Election Day, it no longer saw a small and frightened people that could be stampeded with a press release. It began to see its truer self. It began to see reality again.

What if they really are terrorists? Two judges looked closely at 23 real cases, and 22 really aren't. That may not be what the attorney general wants. But it is reality, at last.

Sabin Willett is a partner at Bingham McCutchen, which represents Guantanamo prisoners.

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