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Op-ed column: Time of their lives
Long internment at Guantánamo is unconscionable
Sunday, November 2, 2008
Kathryn McCary

The juxtaposition was thought-provoking. Front page stories in The Daily Gazette on Wednesday, Oct. 22, featured the abrupt termination of two quite different prosecutions.
Locally, Fulton County prosecutors dropped presentation of a rape case to the grand jury after the primary witness — the alleged victim — recanted her testimony on Friday, Oct. 17.

Prosecutors noted that her story wasn’t credible, in light of exculpatory evidence consisting of both eyewitness testimony and surveillance camera footage showing that the accused was elsewhere at the time. Just why they chose to seek indictment — and why it took them more than 4 months to do so — went unexplained, but they did initiate criminal charges against the accuser following her recantation. Gloversville police charged the accuser with misdemeanor counts of falsely reporting an incident and making a false written statement.

But the accused spent four months in legal limbo. He lost his job, he lost his home, he saw family and friends turn against him. He’ll get some of it back — the job for sure, a home someday, perhaps even most of the family and friends. He can get on with his life, but he can never regain the 130 days he spent waiting for the government to act, which must at times have seemed an eternity.

To his credit, he made lemonade from those lemon days, going back to school to improve his employment credentials for when he could go back to work. And he sets an example of forgiveness, and the dignified acceptance of adversity, in his choice not to pursue a vendetta against his accuser, and in his determination to rebuild his life in the community where he has lived all of it to date. We can rejoice with him that his life has been restored, even as we commiserate over the damage it has sustained.

What if he had been sitting in jail waiting for the government to act? What if he had sat there for over six years?
Military case

Also on Friday, Oct. 17, Pentagon prosecutors dropped charges previously brought against five men detained at the U.S. detention camp in Guantánamo Bay. This action followed the September resignation of Lt. Col. Darrel Vandeveld, the Army officer who had been acting as primary prosecutor in all five cases. He attributed his resignation to a “crisis of conscience,” asserting, in effect, that he was being forced by his superiors to violate the lawyer’s ethical and legal obligation to turn potentially exculpatory evidence over to the defense.

This is a fundamental of criminal procedure in this country: Because prosecution is about proving the guilt of the accused, not about winning at all costs, if prosecutors have evidence suggesting the accused may not be guilty, they are obligated — at the very least — to turn it over to the defense.

Of course, Lt. Col Vandeveld’s resignation and revelation played no part in the decision to drop the five prosecutions. Oh, no, no, no, not at all. The decision was based on the need of the new prosecution teams to evaluate the cases. The charges are being dismissed without prejudice, so the government can bring new charges at any time. The five men will not be released, but will remain in prison while the government “completes its preparation” to charge and prosecute them. How long, oh Lord, how long?

Evidence is not a fine wine — it does not improve with age. If the government, which holds all the cards in the military commissions where these men will be prosecuted, does not after more than six years have sufficient evidence to convict them, just when does it expect to have such evidence? What was the basis for the arrests — sorry, the detentions — in the first place? Why can’t that evidence be used? If it was sufficient to imprison them for more than half a decade, it should be sufficient to convict them of some criminal act. And if it isn’t, what steps is the Pentagon prosecutorial office taking to uncover new and compelling evidence?

At the height of the Guantánamo madness, more than 700 men were being held there, uncharged and unconvicted. In the interim, many (reports as to the number released and the number still imprisoned vary) have been released to the “custody” of their home countries . . . which have generally freed them.

There are nonetheless at least 270 detainees remaining at Guantánamo, and they have been in legal limbo for more than six years, more than twice the length of the last shameful American imprisonment of the uncharged and unconvicted, the internment of Japanese-Americans during World War I.

Long nightmare

The Guantánamo prisoners have lost whatever jobs they had. They have been kept, for an unconscionably extended period, from their homes and from contact with their families and friends. They haven’t used the more than 2,000 days of their confinement to good advantage by going back to school; there is no school in which they could enroll.
Some of them have written poetry, some of which has been published (“Poems of Guantánamo: The Detainees Speak,” edited by Marc Falkoff, University of Iowa Press, 2007); other than that, it is hard to see any good that has come — to them or to anyone else — out of their extended captivity.

Are some of those who remain guilty of crimes legitimately subject to prosecution and punishment by the United States? Quite possibly, but if so, they should be prosecuted, and punished. Give us the opportunity to rejoice that their guilt has been established and an appropriate penalty imposed, or give us the opportunity to rejoice that they have been released, along with our national conscience.

Our continued shilly-shallying refusal to treat these men as human beings entitled to the most minimal level of due process is a national disgrace.

If four months is an eternity, just what is six years?

Kathryn McCary is an attorney who lives in Schenectady. The Gazette encourages readers to submit material on local issues for the Sunday Opinion section.

Point taken that these 270 detainees should have been prosecuted or let go during these 6 years. I would tend to disagree but appreciate  her view on that.

But does Ms. McCary also suggest that we should give these 'non-American' citizens (detainees) an education while detained? Should we fall victim to their situation?

I believe this is an international issue. It is a 'war' issue, whether we approve or not. I'm sure American 'prisoners of war' are not treated the same as their countrymen are. Ms. McCary should be reminded that our American's were BEHEADED as a punishment. And that was just for being an American. So I'd say that these detainees have it pretty good over here in comparison. Perhaps Ms. McCary is comparing apples with oranges here.