Letter to the Editor
November 29, 2006
Sir, This firm represents the four Kuwaiti detainees imprisoned at Guantanamo. We are writing to respond to a number of incorrect statements made by the US Department of State Legal Advisor John Bellinger during his recent press conference in Kuwait, as reported in the Arab Times' Nov 21 edition. The major misstatements of facts and law were:
1. Incorrect statement: The US Legal Advisor stated that the four remaining Kuwaiti detainees are being held because they "pose a serious threat of return to acts of terrorism."
Facts: There has never been a fair hearing to determine whether any Kuwaiti detainee (or any other detainee, for that matter) has ever committed or supported an act of terrorism. The Kuwaiti detainees deny that they are or ever have been "terrorists" or enemies of the United States. All they ask for is due process: if the US government has evidence that any of them is a terrorist or enemy combatant, either put that evidence before an independent US judge, or return the detainee to Kuwait and present the evidence to an independent Kuwaiti judge. The Kuwaiti detainees are not afraid to have the evidence heard in a court of either country.
2. Incorrect statement: The US Legal Advisor claimed that all of the detainees would have the right to challenge their detention in federal court.
Facts: The US Administration has taken the exact opposite position in legal proceedings. On June 28, 2004, the US Supreme Court decided, over the objections of the US Administration, that the detainees have a right to habeas corpus. Since then, the Administration has prevented all detainees from exercising that right. According to the US Administration, no court will be permitted to consider or hear any evidence.
Only Military tribunals controlled by the US Administration can consider evidence - not the courts - not even whether evidence relied upon by the Military tribunal was obtained by torture or coercion. So, as a practical matter, in over 5 years of imprisonment, the Kuwaiti detainees have not had any day in court - and if up the US Administration, they will never have a hearing before an independent tribunal.
3. Incorrect statement: The US Legal Advisor said that all of the detainees have access to lawyers.
Facts: The US government prevented the detainees from access to lawyers until the US Supreme Court ruled against the government in June 2004. Immediately after the Military Commission Act was passed by Congress and signed by the President in October 2006, the US government petitioned the US Court of Appeals and argued that the detainees should be limited to a maximum of four visit with their lawyers.
4. Incorrect statement: The US Legal Advisor denied that classified evidence would be withheld from detainees or their counsel.
Facts: In filings with the US courts, the US government position always has been that neither detainees nor their counsel will be entitled to see any classified evidence that the Military tribunals relied upon in making their decisions.
5. Incorrect statement: The US Legal Advisor claimed that most of the detainees were "trained in al-Qaeda training campus."
Facts: There is no basis for the claim that most of the detainees were associated in any way with al-Qaeda. Most of the detainees, including the Kuwaiti detainees, were not captured in battle. Rather they were kidnapped by bounty hunters and turned over for bounty money by Northern Alliance and Pakistani forces. The former commandant at Guantanamo, General Hood, has publicly acknowledged that there are many detainees at Guantanamo who are neither terrorists nor enemy combatants.
6. Incorrect statement: The US Legal Advisor said, "We do not subject people to torture."
Facts: Unfortunately, that is not true. Detainees at Guantanamo have been tortured and abused. The US government takes the position that the Geneva Conventions do not apply to the Guantanamo detainees. Even after the Supreme Court ruled against the government on this issue in June of this year, the Administration attempted to get approval from Congress to ignore the Geneva Conventions. Although the MCA requires recognition of the Geneva Conventions, the Administration is still able to use what it refers to as "alternative methods of interrogation," which include methods, like water boarding, that are generally considered to be torture.
As long as the US government continues to imprison men without giving them a right to a hearing before an independent tribunal with fair procedures to determine whether they should be held or released, Guantanamo will continue to be a stain on the reputation of the United States and a contradiction of the values of human freedom and the rule of law on which our country is based.
David J. Cynamon
Pillsbury Winthrop Shaw Pittman LL