Published on Monday, December 1, 2003 by Knight-Ridder

Military Officers File Brief Against Bush's Policy in Guantanamo

by Frank Davies

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.

"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.

We took an oath to defend the Constitution. Not the president or secretary of defense.

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.

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.

"For me it's a question of balance between security needs and due process, and I think we've lost our balance," Guter said.

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.

Early next year, the Supreme Court will hear the case in a potentially historic clash between presidential authority and judicial oversight.

"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.

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.

In early discussions, Guter favored holding prisoners at Guantanamo, but he thought their detention would be temporary.

"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."

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.

"Somehow, in the fog of war, we skipped over that," Hutson said.

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.

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.

"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.

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.

"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.

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.

"International pressure was important, and they (North Vietnam) played a little more by the rules toward the end," Brahms said.

There may be an inclination in the military to go along with indefinite detentions, Guter said, but it's misplaced.

"We took an oath to defend the Constitution," he said, "not the president or secretary of defense."

To read the friend-of-the-court briefs mentioned in this story, go to www.davidhenderson.com/gitmo/news