In the aftermath of Saddam Hussein's execution, Thomas P. Sullivan of Jenner & Block reflects on the fact that the Iraqi dictator was offered at least some modicum of procedural justice. The same can not be said for the prisoners in Guantánamo.
Consider The Irony Of Guantanamo Bay
From the Chicago Tribune, January 5, 2007
By Thomas P. Sullivan
What an irony, what a contradiction! Although the trial may have been flawed and the execution precipitous, the Iraqi government afforded a mass murderer, Saddam Hussein, basic rights before judgment was pronounced. Hussein was presented with written charges, provided the assistance of lawyers, the government was required to introduce proof to support its charges through competent witnesses, whom his lawyers were permitted to cross-examine, and he was allowed to produce evidence in his own defense.
Compare this to the way our government has handled the cases of more than 400 men, most of whom have been held almost five years in a prison at Guantanamo Bay, Cuba. Not a single one has been given a hearing at which the government has been required to produce evidence explaining why he is being held, or had the assistance of a lawyer, or an opportunity to produce evidence in his own defense. No so-called classified evidence has been revealed. No independent judges have presided.
It now appears clear that virtually none of these men will ever receive these kinds of trials. United States officials have announced that only a handful of the prisoners will be tried before the newly created military commissions, while the others will continue to languish indefinitely in their tiny cages.
Army and Navy brass have become accessories to this scandalous state of affairs by continuing to claim that the prisoners are dangerous, the "worst of the worst," as though this provides justification for continuing to jail them without hearings. Even more shameful, a congressional majority mindlessly succumbed to White House pressure by voting to deprive the prisoners of the right to seek relief in federal courts.
It has been argued that "military necessity" precludes providing legal protections to the prisoners and that to do so will interfere with conduct of the "war on terror." But these men are not held on or near a battlefield. They are isolated on a remote island; almost none has been questioned within the past two years; they no longer have unplumbed "intelligence" value.
The cost to maintain this prison, and the need to provide round-the-clock supervision, is clearly inconsistent with our national interests. Far better to charge and try those where there is solid evidence they committed punishable offenses and release the others without further delay, expense and diversion of military and civilian personnel. Those found guilty should be sentenced appropriately, and those not charged or found not guilty after trial should be returned to their native countries. The least we should do for them is what was done for Saddam Hussein.
Refusal to afford due process of law to these men is a national disgrace. If compliance with fundamental principles is insufficient to motivate our leaders--if they require selfish reasons to move them to action--they should bear in mind the precedent they are setting for how other nations may treat our citizens taken into custody abroad.
Thomas P. Sullivan, who represents a number of prisoners at Guantanamo Bay, is a partner in the law firm Jenner and Block and was co-chair of the Governor's Commission on Capital Punishment. He was the U.S. attorney for the Northern District of Illinois from 1977 to 1981.