Rule of Law vs Bush: WSJ Letter

Wall Street Journal
March 27, 2007

A Process Essential To The Rule Of Law

Debra Burlingame's obvious passion in her March 8 op-ed plea ("Gitmo's Guerrilla Lawyers") for the preservation of what she accurately describes as "lawyer-free zones" is, given her brother's unfortunate death and her position as a director of the World Trade Center Memorial Foundation, perhaps understandable. She is also a lawyer, however, and thus must appreciate that "lawyer-free zones" are in fact law-free zones. When the executive branch chose Guantanamo as a place of detention, the creation of a law-free zone was exactly what was intended. Statements by persons in the executive branch suggesting, as did Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson, that clients should retaliate against law firms that undertook to represent Guantanamo detainees were a part of the executive branch effort to preserve that law-free zone, despite the Supreme Court's decision in the Rasul and Al Odah cases holding that the rule of law reached there.

About 400 men remain at Guantanamo. After five years, the government has designated only 15 of them as people it has "reason to believe" supported terrorism. According to Defense Department documents, only 5% were captured by U.S. forces; 86% were taken into custody by Pakistani or Northern Alliance forces at a time the U.S. was offering large financial bounties for the capture of any suspected Arab terrorist; the large majority never participated in any combat against the U.S. on a battlefield; and only 8% have been classified as al Qaeda fighters.

We now know that the government swept up many people in the aftermath of 9/11 and that mistakes were made. In fact, we know that as early as August 2002, a CIA specialist sent a secret report to Washington warning that most of the prisoners at Guantanamo simply "didn't belong there." Several former interrogators and translators have said the same thing. The former deputy commander at Guantanamo was quoted as saying, "Most of these guys weren't fighting. They were running." And the former commander there was quoted in this paper: "Sometimes we just didn't get the right folks," and the reason those "folks" were still in Guantanamo was that "nobody wants to be the one to sign the release papers. There is no muscle in the system."

Ms. Burlingame made light of the fact that many of these men were sold into captivity for bounties. But it is significant that the executive branch was offering from $5,000 to $25,000 -- in countries where people earned less than $200 a year -- for any Arab terrorist they turn in. That doesn't mean that everyone turned in was innocent, but it does mean that they aren't all necessarily guilty. In a law-free zone, however, their guilt or innocence is simply not relevant.

What is it the "guerrilla lawyers" want? As their brief to the Supreme Court last week said, "single remedy: a fair and impartial hearing before a neutral decision maker to determine whether there is a reasonable basis" for the detention.

That process is essential to the rule of law. It is necessary so that the guilty can be identified and punished and so that the innocent can be freed. Without such a process, the government could lock up anyone forever simply on suspicion or whim, and it could release guilty people simply because of political pressure. Ms. Burlingame criticizes the lawyers for telling their clients' stories to the press. But it must be remembered that the government has chosen not to charge or try these prisoners in a court of law, but instead has charged them in the press, calling them "the worst of the worst" and "terrorists." In these circumstances, it is the ethical duty of the lawyers to also get their side of the story out to the public through the press.

Ms. Burlingame singles out Tom Wilner for particularly vituperative criticism. Tom Wilner is outstanding. He is a strong advocate for the preservation of America's constitutional principles and the rule of law.

John J. Gibbons, New York

(The author was formerly Chief Judge of the United States Court of Appeals for the Third Circuit.)