ESCAPE FROM GUANTANAMO

Those who oppose the closing of Guantanamo Prison seem to suggest that the prisoners will be flown to Kennedy Airport, released from custody with a new suit and $100 to buy explosives to blow up the first Starbucks they can find. It is reminiscent of Justice Scalia's bizarre reasoning in the Boumedienne case, that if the detainees are granted hearings, they will be freed to return to the battlefield and kills more Americans; ergo they should not receive hearings, completely ignoring the fact that many of the detainees were and may be innocent. The closing of Guantanamo is a necessary move on the part of the Obama administration, because it has become the symbol of U.S. abuses and the vehicle for recruiting an ever-increasing army of terrorists.

Closing it will not result in the arbitrary release of terrorists. It will necessitate a complete review of the detainees and the basis for their detention. Those for whom there is no legitimate basis to retain them will be released, even though to where remains a constant problem. Those for whom there is evidence of terrorist activity will be incarcerated elsewhere., and eventually subject to a hearing in accordance with the law, either military tribunals or civil courts. Some of the concerns about the ability to convict the real terrorists have been self-inflicted by the Bush administration. The mistreatment of prisoners may impede the prosecutions and, indeed, may even result in some acquittals. But here again we follow the Scalia logic at our peril: Terrorists who have been tortured may be acquitted as a result of the abuses and return to the battlefield; therefore they should not receive hearings in order to avoid that possibility. We cannot deny hearings to persons merely because we have violated their rights in the process.

As to the fear of the disclosure of state secrets, I know as a former federal judge, that judges are perfectly capable of balancing the security of the country with the rights of the accused, through redactions, in camera proceedings, etc. Although the Bush administration professed that it was concerned that trial disclosures could injure national security, I suspect it was more interested in concealing its abuses rather than protecting national security.

Finally, fear about location of the detainees is unfounded. We have been able to imprison serial killers, murderers and other violent criminals for their respective lifetimes. There is no reason to believe that we are incapable of doing the same for terrorists. There is a valid concern that imprisonment on U.S. soil might enhance opportunities for terrorist activities by those who are truly terrorists, but as with other highly dangerous criminals, restrictions can be imposed to prevent such activities.

The problems as to what should be done with the detainees remains the same no matter where they are detained. Moving them to a new location neither exacerbates nor diminishes those issues. But closing Guantanamo sends an important message to the world that the new administration sees and hears what has occurred at Guantanamo and rejects and condemns it. That message outweighs any practical problems which might arise from the closing. If ever there was a time for principle to trump the pragmatic, this is it.

WHY WE SHOULD CARE ABOUT THE GUANTANAMO PRISONERS

When law students ask me what was my greatest case in the 25 years that I was a trial lawyer, I tell them that during the 1967 race riots in Newark, New Jersey, a group of lawyers was organized to represent African-Americans who were arrested during the riots, and I was among those who volunteered. I represented a man who had been swept up with a group of rioters and looters, spent 5 days in prison without being able to tell his family where he was, 7 days without legal representation and a total of 15 days before he had a hearing. At the hearing, he testified that at the time he was arrested, 5 A.M. in the morning (during a curfew) he was waiting for a bus---the same bus that he had taken for the last 16 years to go to his job. Although surrounded by the riots and the fires, he did not want to miss a day's work, because he needed the money to support his family. He was acquitted and released. That was my finest hour.

No one suggested to the Newark merchants that they should not do business with the many law firms that were representing the very persons who were charged with burning their stores and looting their merchandise. It would have been unthinkable. This is what lawyers do and did. For us in the legal profession, it was our proudest moment. It is what one dreams about while in law school.

By now everyone has heard and read about the statements by Charles D. Stimson, the deputy assistant secretary of defense for detainee affairs, suggesting that clients should consider ending their ties with law firms that were representing detainees at Guantanamo, the outrage that followed his statements (except from the President) and the purported apology that he offered. But, in truth, despite the outcry over his outlandish threats, no one should be surprised by the statements. They were uttered in a comfort zone and atmosphere which invited them.

The administration has dealt with any and all criticisms of its erosion of civil rights by charging that they are "unpatriotic", "aid or give comfort to the terrorists", or "injure the morale of the troops". Any judge who upholds the constitutional rights of the accused is pounded with being "a liberal", "an activist", or "soft on crime" (an expression that appears 6,720,000 times in a Google search). With an administration that engages in illegal wire- tapping, the unlawful detention of an American citizen, secret foreign prisons, disregard of the Geneva Convention and hints at permissible torture, ignores Congressional oversight and avoids judicial scrutiny for its actions, is it any wonder that one of its officials would feel free and comfortable suggesting that the pro bono representation of suspected terrorists should warrant sanctions from their clients?

There, indeed, may be be some real terrorists imprisoned at Guantanamo, but as we already know, many are there based upon false accusations, acts of personal or tribal vengeance or other misinformation. Many have been released. But no matter what their guilt or innocence, to threaten those who seek to represent them is to repudiate one of the most basic and fundamental rights now recognized in our democracy. Although we all want to wash Mr. Stimson's mouth out with soap, we should remember that the foul language he used---he learned at home---the White House.