Chicago Tribune Editorial - Gitmo, Justice--and justice

Chicago Tribune Editorial - Gitmo, Justice--and justice
Copyright © 2007, Chicago Tribune
Published May 14, 2007

Roughly 385 foreign nationals are being detained at the U.S. naval base at Guantanamo Bay, Cuba. Their access to lawyers (and the quality of that representation) is in the hands of the U.S. Court of Appeals for the D.C. Circuit, which will hear oral arguments on that issue Tuesday.

In 2004, the Supreme Court ruled that lawyers should be allowed to go to the base to represent the detainees. Since then, attorneys have been able to meet with their clients numerous times in order to build cases.

However, the Justice Department claims that the attorneys are disruptive to Gitmo and burdensome to its staff. Justice also says the lawyers serve as an avenue through which information is passed to the media.

The upshot: Justice is petitioning the court to restrict attorneys' access to their clients. The department wants to require the detainees to accept or reject an attorney's service after a first meeting, to allow military personnel at the base to read mail sent from attorneys to their clients and to allow the government to keep some secret evidence against detainees away from their lawyers. On Friday, Justice withdrew another proposal to limit the lawyers to three visits with each client.

Forcing a detainee to accept a lawyer after one meeting is unfair: It can take multiple meetings for a lawyer to convince a detainee that he isn't a government agent. According to news reports, some detainees have rejected legal representation for fear that attorneys are aiding the government, or simply powerless to help them.

As for the claim that the attorneys feed information to the media, that's correct -- and, provided they're not leaking government secrets, it's appropriate. The lawyers are the main source of information about the detainees. Their firsthand accounts constitute a big share of the public's knowledge about Guantanamo Bay.

Justice is blurring the distinction between an attorney leaking classified information and one simply giving the media a firsthand account of life at Gitmo. The first is illegal. The second is just inconvenient for the government.

More serious, though yet unproven, is the government's contention that lawyers have caused security problems at Gitmo by delivering information about terror attacks elsewhere, arguably emboldening detainees to resist their captors.

What to make of Justice's arguments? Unless the government presents more compelling evidence of problems with the current protocols than it has thus far, the court should reject them.

When it comes to detaining people with suspected links to Al Qaeda and the Taliban, the burden of proof essentially is on the defense to establish innocence. The Bush administration and Congress consistently have cited national security and the effective prosecution of the war on terror to design a judicial process with rules different from those in most U.S. courts. And not without reason. Many of the detainees are dangerous people who, if freed, could wage war on the U.S. and its allies.

However, keeping possibly innocent people locked up without adequate legal representation is un-American.

This is a new kind of war, with a new kind of enemy that must be engaged with every resource. But that doesn't justify rejecting a fundamental fairness merely to make life easier for the government. If we're going to call this a judicial process, the least the U.S. can do is give Gitmo detainees legal representation that the Supreme Court has suggested they deserve.