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Guantanamo: When will justice be done?

Atlanta Journal Constitution
by John A. Chandler
September 28, 2008

Suleiman Al Nahdi and Fahmi Al Assani were cleared by Guantanamo to go home in February. We said goodbye to them in Guantanamo that month. Now, six months later, they languish in Guantanamo because of government ineptitude and judicial inaction.

For 6 1/2 years, five of our clients from Yemen have languished in Guantanamo, thousands of miles from home and family. None of the five has any charges against them, none has had a hearing before a judge, no trial, and no right to establish their innocence because there are no charges to refute. For years we have told our clients, many of whom were victims of torture in their early years of captivity, that the American justice system would give them a chance to prove their innocence, even if we assumed it was their burden rather than the government’s. As a lawyer, an Army veteran and a true believer in the rule of law, I have had confidence that our system of government would overcome the wrongheaded policies of our administration — policies imposed by politicians over the opposition of our military leaders.

Finally in June of this year, the U.S. Supreme Court handed the administration its third straight shellacking: in Boumediene v. Bush, the court stated in no uncertain terms that the men in Guantanamo have the right to challenge their confinement. Never in the history of our country have we held men without charges, without a trial and without a conviction. Even though only 8 percent of these men were picked up on any battlefield, we might have held them as prisoners of war if we really believed they were enemy combatants. But our political leaders decided for the first time that we really did not like the Geneva Conventions that protect our fighting men and women. So we made up a new category of humans and have held them without regard to their rights.

In Boumediene the Supreme Court rejected the administration’s arguments and held the men were entitled to have their confinement reviewed by independent federal judges. But the Supreme Court went further — it said that the burden of delay should no longer fall on the men held in Guantanamo and that a delay of even months before their hearing could not be tolerated. So when we last visited our clients in July, we told them hearings would be imminent and the two who are cleared should be on their way home soon.

Despite the Supreme Court’s admonition, our government has done everything it can to delay hearings, and none have been held. The government wants to argue about definitions, about procedures, about the shape of the table, about anything but the merits. And well they should. In the U.S. Court of Appeals for the District of Columbia they have fought five petitioners and lost all five in Parhat v. Gates. This administration seemingly wants to punt the problems it has created to the next president, knowing that both Sens. John McCain and Barack Obama have said they want to close Guantanamo.

When we return to Guantanamo in October, we will again tell the men we hope their hearings are imminent. For our two clients cleared for release from Guantanamo in February, continuing to sit in Guantanamo will be hard. Why is not sending them home the first priority of the government and the courts?

Only the fear of putting on evidence before a federal judge will focus the administration on the felicity of sending these men home. We’ll tell our clients we still believe in the rule of law in this country and they will soon have a chance to defend themselves. But after 2,400 days at Guantanamo, it is getting harder and harder for them to believe us.

John Chandler, an attorney at Sutherland in Atlanta, has, since 2004, represented seven men jailed at Guantanamo.

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