- WASHINGTON -- Navy Rear Admiral
Don Guter felt the Pentagon shudder when an airliner hijacked by terrorists
crashed into it on Sept. 11, 2001. He helped evacuate shaken personnel
and later gave the eulogy for a colleague killed that day.
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- "I would have done anything that day, and I fully
support the war on terrorism," said Guter, who served as judge advocate
general, the Navy's chief legal officer, until he retired last year.
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- Nonetheless, he's joining his predecessor and a retired
Marine general with expertise on prisoner issues to challenge the Bush
administration's indefinite detention of suspected terrorists at the Navy
base in Guantanamo, Cuba.
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- Guter, Rear Adm. John Hutson and Brig. Gen. David Brahms
worry that lengthy incarcerations at Guantanamo without hearings will undermine
the rule of law and endanger U.S. forces.
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- "For me it's a question of balance between security
needs and due process, and I think we've lost our balance," Guter
said.
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- The trio of retired officers recently filed a Supreme
Court amicus brief on behalf of 16 detainees held for almost two years.
The government contends that all are enemy combatants, most captured in
Afghanistan and Pakistan, and have no legal rights, prisoner of war status
or access to federal courts.
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- Early next year, the Supreme Court will hear the case
in a potentially historic clash between presidential authority and judicial
oversight.
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- "This may be one of those cases that comes along
every 50 years - there's that much at stake," said Eugene Fidell,
president of the nonpartisan National Institute of Military Justice.
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- Former federal judges, diplomats and even American POWs
from World War II also have filed briefs urging the Supreme Court to reconsider
lower court rulings on the detainees that favored the administration.
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- In early discussions, Guter favored holding prisoners
at Guantanamo, but he thought their detention would be temporary.
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- "We would be safe, the detainees would be safe from
reprisal," Guter said. "But many of us expected some sort of
hearings by now for some of these people. The crux of this is, how long
can we hold people without anything? It's now two years, and that's troubling."
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- Guter's group believes the administration and Pentagon
missed a chance to provide quick hearings called for in international conventions
on the treatment of prisoners to determine if the captives were probably
enemy combatants.
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- "Somehow, in the fog of war, we skipped over that,"
Hutson said.
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- Instead, President Bush ordered the creation of military
tribunals to try some captives. But those trials have been delayed by debate
over rules and by complicated negotiations with Britain, Australia and
other countries that have nationals held prisoner at Guantanamo.
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- For two years, the Bush administration has described
the detainees as "the worst of the worst" and "killers."
The three former officers are skeptical, noting that 88 have been released
so far from the prison camp.
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- "We're trying to separate the goat-herders from
the real terrorists, and that's not easy, but I'm not convinced they're
all guilty," said Hutson, now the dean of the Franklin Pierce Law
Center in Concord, N.H.
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- The trio also worries that the Guantanamo precedent will
make it easier for other countries, groups and warlords to hold Americans,
keep them isolated and ignore the Geneva Conventions.
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- "If we want the world to play by the rules, we have
to be on the moral high ground," said Brahms, who spent 26 years in
the Marines before opening a private law practice in Carlsbad, Calif.
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- He was the Marine Corps' principal legal adviser on POW
issues when the Vietnam War was ending. Brahms recalled that U.S. forces
tried to follow the Geneva rules on POWs, and that gave them some leverage
with North Vietnam, which was holding U.S. prisoners.
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- "International pressure was important, and they
(North Vietnam) played a little more by the rules toward the end,"
Brahms said.
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- There may be an inclination in the military to go along
with indefinite detentions, Guter said, but it's misplaced.
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- "We took an oath to defend the Constitution,"
he said, "not the president or secretary of defense."
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- - To read the friend-of-the-court briefs mentioned in
this story, go to www.davidhenderson.com/gitmo/news
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- © 2003 KR Washington Bureau and wire service sources.
All Rights Reserved.
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- http://www.realcities.com/mld/krwashington/7382736.htm
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