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Boston Globe
27-09-06, 10:37
The innocent man at Guantanamo

By Sabin Willett | September 27, 2006

``THE INTERROGATOR shut her file and said, `Congratulations! Your interrogation is complete. You're innocent! You'll be leaving soon.' "

``When did this happen?" I asked.

Abdulnasir searched his memory. His foot moved back and forth the short length of the chain clipped to the floor. Then the young man spoke softly, ``The year after we got here -- 2003. In the spring, I think -- a long time ago."

Abdulnasir is in Guantanamo today, more than three years later.

Is Abdulnasir innocent?

Abdulnasir is a Uighur -- part of a Muslim minority whose central Asian homeland fell to the Communist Chinese in 1949. Ever since, the Uighurs have dreamed of independence and, ironically, of America, whose ideals they love. In the fog that followed the US invasion of Afghanistan five years ago, a number of Uighur men were sold to the United States by Pakistani bounty hunters.

Almost no one at Guantanamo was captured on a battlefield. Most were sold for bounties.

Last March my law firm filed for two Uighur men a habeas corpus petition -- a request that a court determine whether their imprisonment is legal. Only later, when we reached the base in July 2005, did we learn that the military had already concluded that the two were noncombatants. Only habeas corpus gave us the tool to press for release. On the eve of a court hearing last May, Adel and Abu Bakker were sent to Albania.

``Abdulnasir was with us," they said. ``We are not enemy combatants. Why do they call him that?"

So we filed a second petition for Abdulnasir and other Uighur men. The government has never explained their ``enemy combatant" badge. The military records bear out what the cleared Uighurs say, that Abdulnasir and the others were with them, and had no more connection with Al Qaeda or the Taliban or combat than they did.

Is Abdulnasir innocent?

The usual way we would answer that question -- the way we have answered it for centuries -- is in a habeas corpus hearing. The government would present whatever facts or law justify his imprisonment. Abdulnasir would respond, and a federal judge would decide. This habeas corpus proceeding is the most basic judicial protection we know, and the most ancient. The writ predates our own Constitution.

But now Congress is considering a bill that would eliminate habeas corpus for Abdulnasir and hundreds of others at Guantanamo. It is a strange bill. It contains many pages to ensure that Khaled Sheikh Mohammed and other alleged 9/11 murderers will be fairly tried. Almost as an afterthought, it adds a provision that eliminates judicial review for men like Abdulnasir, who will never be tried, indeed, never be charged with anything.

The only question this bill would permit a court to review is whether a military panel followed Secretary Donald Rumsfeld's rules when it branded Abdulnasir an ``enemy combatant." That's not much of a review: The secretary's rules extended ``enemy combatant" to people who'd neither been enemies nor combatants, and never been on any battlefield. It let the panels rely on tortured ``confessions" and other secret evidence.

The other day Senate majority leader Bill Frist spoke of being within ``ten yards of vicious terrorists at Guantanamo." He almost snarled as he said it. I don't know who he saw, but I wish he'd joined me in Camp Echo with Abdulnasir and formed his judgment of this gentle man at the closer quarters from which physicians usually observe patients.

When, I wonder, did we become such a small people? So panicked by foes that we lash out at friends, so terrified by those who hate freedom that we abandon the very institutions that make us free?

I think our legislators need to travel again to Ground Zero, as I did on Sept. 8. It is a holy place, filled with sadness. And yet a new energy is felt there, a new urgency, an impatience with paranoia, a brash determination to rebuild. New Yorkers are confident today -- confident for many reasons, and among them, as President Eisenhower said so long ago, that we have habeas corpus, and we needn't fear any man.

Is Abdulnasir innocent?

A judge could tell us. The sad thing is this: If the bill passes, it won't matter.

Sabin Willett is a partner at Bingham McCutchen LLP.

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