The Worst and the Rest

Are there no innocent men at Guantanamo Bay?

The recent confirmation that Muhammed el-Qahtani, a Saudi who reportedly had planned to participate in the September 11 terrorist attacks, is among the U.S. detainees at Guantanamo Bay, Cuba, seemed to support the Bush administration's assurances that the men held there are "the worst of the worst." But a closer look at the government's accusations against the prisoners, many of whom have been locked up for more than four years without charge or trial, indicates that most are smaller fry and that some are guilty of nothing more than being in the wrong place at the wrong time.

It is undisputed that, in the chaotic conditions of Afghanistan and western Pakistan during the U.S. fight against Al Qaeda and the Taliban, innocent men were picked up, turned over to the Americans (sometimes in exchange for bounties), and transported to Guantanamo Bay as "enemy combatants." The government concedes it happened to Uighur Muslims who had fled persecution in China, some of whom are still being held at Guantanamo, officially because they would not be safe if returned to their native country.

If the Uighurs could be mistakenly identified as enemy combatants, surely it's possible that some of the hundreds of other detainees at the base do not belong there either. That possibility seems especially strong when you consider that most of the detainees were captured not by U.S. forces but by Pakistan or the Northern Alliance; that most were not "captured on a battlefield," as Defense Secretary Donald Rumsfeld claimed; and that most were not accused of committing hostile acts against the U.S. or its allies.

Most are instead deemed enemy combatants based on alleged links to the Taliban, Al Qaeda, or other groups that support terrorism. While the evidence of such links is in some cases substantial, in others it consists almost entirely of hearsay, sometimes obtained from prisoners subjected to harsh interrogation techniques bordering on torture.

In several cases, as Corine Hegland noted in a disturbing National Journal cover story last February, the government has cited such common behavior as wearing a Casio watch, carrying a gun, or staying in a guest house as evidence of a detainee's membership in Al Qaeda or the Taliban. And what should we make of the fact that the government identifies the affiliation of some detainees as "Al Qaeda or Taliban" (emphasis added)? How strong can the evidence be if the government can't even say which group a detainee supposedly belonged to?

Strong enough to satisfy the Pentagon's Combatant Status Review Tribunals, which rely heavily on hearsay, admit coerced testimony, and presume a detainee has been correctly deemed an enemy combatant unless he can demonstrate otherwise. Since detainees are not entitled to attorneys at these proceedings and often cannot see the evidence against them because it's classified, that's a tall order.

The Bush administration nevertheless insists the detainees are getting all the process they're due. That question may ultimately be decided by the U.S. Supreme Court, which in 2004 ruled that the detainees have a right to seek judicial review of their cases.

Last year, in response to the lawsuits encouraged by that ruling, Congress passed legislation aimed at stripping the detainees of their habeas corpus rights. The amendment's chief sponsor, Sen. Lindsey Graham (R-S.C.), said he wanted to stop "the never-ending litigation that is coming from Guantanamo," implying that every petition was without merit.

An attorney for one detainee responded with a Washington Post op-ed piece in which he noted that his client, one of the Chinese Muslims, remained at Guantanamo even though the government had cleared him of involvement with the Taliban or terrorism. In her National Journal piece, Hegland makes a convincing case that another detainee, a young Yemeni named Farouq Ali Ahmed, also is at Guantanamo by mistake.

I don't know how many innocent men there are at Guantanamo, and neither does the government. I wish it cared a little more.