“You can only protect your liberties in this world by protecting the other man’s freedom.  You can only be free if I am free.”
                                                                                         - Clarence Darrow

Three week sago, Senator Martinez (R-Fla) asked Jeh (pronounced “Jay) Johnson, currently General Counsel for the United States Department of Defense, what would happen to Guantánamo detainees who are tried and acquitted. Johnson responded that the U.S. could invoke the 2001 Authorization for Use of Military Force to continue to hold detainees after they were acquitted.

The possibility of any of the Guantánamo detainees being acquitted is an issue for which many of our politicians have expressed grave concern.  To hear media bigots like Rush Limbaugh and Sean Hannity talk, the possibility of releasing anyone who has been accused of terrorism is tantamount to committing treason, regardless of the findings in a court of law.

Alternative solutions have been posited, none of which even suggest that acquitted individuals be released.  In a recent hearing of the Senate Judiciary Committee’s Terrorism and Homeland Security Subcommittee,  when Michael Edney raised the specter of acquitted detainees being released on U.S. soil, other witnesses responded that the Attorney General could invoke immigration law to detain these individuals, indefinitely if need be, pending deportation. 

Subcommittee Chairman Senator Cardin (D-MD) went so far as to declare that “terrorists are not going to be released into the United States.”  His statement appeared to echo the sentiments of most of his fellow members of Congress, who evidently believe that all of the Guantánamo detainees are guilty of being terrorists.

Elizabeth Goitein recently wrote a superb article addressing this issue, likening the Congressional exchanges taking place to a script written by Lewis Carroll.  As the Queen of Hearts said in Alice in Wonderland: “Sentence first — verdict afterwards.”

The basic problem, though, is, what makes an acquitted detainee a “‘terrorist?”  Under our “innocent until proven guilty” concept of justice, we don’t generally refer to people who have been acquitted of criminal charges as “criminals.” To be sure, this presumption of innocence has led to occasions when accused persons who have, indeed, been guilty of the crime for which they were being tried have escaped conviction. But our system of justice demands the default presumption that an acquitted person is exactly what the jurors pronounced him or her to be: “not guilty.” In the case of Guantánamo detainees, we must absolutely adhere to that presumption.  A case can even be made that the presumption should be even stronger here.

It is highly unlikely that many Americans are disposed to give the benefit of the doubt to people accused of ties to Al Qaeda. If twelve American citizens unanimously conclude there is insufficient evidence to convict an accused Al Qaeda supporter of even the most vaguely worded terrorism offense, what basis is there to consider that person a “terrorist?”

The primary problem is that no one outside the government and a small number of lawyers has seen the actual evidence against the detainees. There is, then, only one possible reason so many people assume that even detainees who win acquittals are likely to actually be terrorists - because the government says so.

Many Americans are either unaware, or choose to ignore, that a shockingly large number of the detainees landed in Guantánamo because they were sold to allied forces by rival tribesmen for the $5,000 bounty offered by the Bush Administration. We easily ignore the fact that many detainees’ “confessions” were obtained by torture either at the hands of foreign governments or by representatives of the U.S. government.

Never mind that courts have, thus far, overturned the government’s designation of “enemy combatant” in 26 out of 31 habeas corpus cases.

Never mind that secret “intelligence,” which is often not released for reasons of “National Security,” and which is the basis for most of the evidence against the accused, is often shadowy information, cobbled together from sources of unknown reliability and has proven to be wrong on many occasions.

None of these facts overrides the assumption by a large segment of the American population that if the government says someone is a terrorist and detains him for several years on that basis, he must be a terrorist.  This assumption is disturbing because it opens the door for redaction and revocation of the very basic freedoms that form the foundation of our Nation.

Many argue that the Guantánamo detainees are not U.S. citizens and, therefore, they are not entitled to the same rights we enjoy under The Constitution.  But the Supreme Court threw out that argument in June of 2008 in Boumediene et al v. Bush when it ruled that prisoners held as “enemy combatants” at Guantánamo Bay could file habeas corpus petitions in U.S. courts challenging the legality of their confinement.

Then, too, there is that little phrase in the Declaration of Independence that says, “We hold these truths to be self-evident, that all men are created equal…”  It says all men - not just American citizens, not just members of the Washington good ol’ boys’ club and not, “all men, except those who practice the Muslim faith.”

When the Bush Administration implemented a detention policy based on the executive branch’s label of “enemy combatant,” the policy served as accusation, trial, and sentence all in one. In the court of public opinion, that’s apparently still the case. So long as most Americans, and particularly our leaders, are convinced the executive branch’s assessment is conclusive factually (if not legally), how can we possibly hope for reform?  And how can we possibly not fear for the preservation of our own liberties?

Finally, as Goitein goes on to write, “When the government has already convicted someone in the court of public opinion, it affects that person’s ability to receive a fair trial in an actual court, regardless of the sufficiency of the court’s legal procedures. Accordingly, in ordinary criminal proceedings, ethics rules prohibit prosecutors from making public statements that would prejudice the potential jury pool against the accused. In this case, the government has not only repeatedly referred to the Guantánamo detainees as “terrorists,” it has reinforced this assessment by imprisoning them for years on end. Under those circumstances, it becomes much harder to find people who are willing to conclude what must surely be true: that some of the detainees are innocent of the charges levied against them.”

Instead of losing sleep over the specter of acquitted detainees roaming the streets of the U.S., Washington needs to give some thought to whether detainees who are innocent will be able to obtain the acquittals to which they are entitled, given that our leaders have so effectively branded them as “terrorists.”  And we need to worry about the implications of this issue for American citizens.