San Francisco Chronicle - Close Guantanamo Now

Op-Ed

By: U.S. Senator Dianne Feinstein

On July 26, Lt. Col. Stephen E. Abraham testified on Capitol Hill that the Bush administration's legal system at Guantanamo - used to determine which detainees should be held indefinitely as enemy combatants - relied on shaky evidence and pressured officers to rush hundreds of hearings.

This is profoundly damaging to the United States' reputation around the world. And it buttresses my belief that President Bush should close the facility within a year, and come up with a process for transferring detainees and ensuring that they face justice.

Abraham is the first Guantanamo insider to go public, and his testimony is further evidence that the Bush administration has set up a separate and lesser system of justice for Guantanamo detainees. It is clear that the administration's attempts to hold and process detainees at Guantanamo are another example of its efforts to expand presidential authority.

The practices described by Abraham would not pass muster in a U.S. District Court, but they appear to be acceptable procedures at Guantanamo. A system that sets a double standard for detainees, holding them indefinitely on flimsy or nonexistent evidence, is inherently unfair and highly suspect. This is damaging, because it goes against America's legal traditions and values, which are a model for the rest of the world.

Such a system does nothing to make America safer. In fact, it makes the world a more dangerous place for Americans, increasing the odds our troops will be denied their rights when captured on foreign battlefields.

Abraham is to be commended for stepping forward - for taking a move that many consider career suicide.

He is a 22-year Army Reserve veteran, who in civilian life is a respected Newport Beach lawyer. His revelations first hit the news on June 22, when he signed a sworn affidavit describing the Bush administration's separate system of justice at Guantanamo.

Days later, the U.S. Supreme Court - in a move not seen in decades - reversed itself and agreed to hear the appeals of two Guantanamo detainees, who assert that they should be able to challenge their incarceration before a judge in the American federal court system.

Many legal experts believe Abraham's revelations spurred the high court to make its unusual about-face. Just weeks earlier it had refused to hear the appeals.

Abraham's testimony goes directly to the root of the problem at Guantanamo.

Detainee abuses reported during the early years at Guantanamo are presumably a thing of the past. But the continued operation of this separate system of justice contributes to the sustained erosion of America's international reputation.

You do not have to be a lawyer to see Guantanamo for what it is: An evasion of U.S. and international law.

The flawed legal theory behind Guantanamo was drafted by Justice Department lawyer John Yoo, who also authored the infamous "torture memo" that paved the way for secret CIA detentions and interrogation. He concluded habeas corpus and other legal protections do not apply to detainees because Guantanamo is "neither part of the United States nor a possession or territory of the United States."

This extreme theory has had a rocky time in the courts. In 2004, the Supreme Court ruled in Rasul vs. Bush that American courts do have jurisdiction to hear habeas corpus and other claims from Guantanamo detainees. And in 2006, the high court ruled in Hamdan vs. Rumsfeld that the Pentagon's process for adjudicating detainees was invalid.

In response, the Bush administration pushed the Military Commissions Act through Congress. It cleared the Republican-majority Senate last year, 65-34. I voted against it.

This dangerous law gives the president broad power to interpret the Geneva Conventions; severely limits detainee appeals; and permits coerced testimony to be entered as evidence - a first in U.S. history. Its flaws are now on full display.

Two military judges threw out charges against two detainees because they had been incorrectly classified as "enemy combatants" instead of "unlawful enemy combatants," as the law requires. And then came Abraham's revelations.

No wonder Defense Secretary Robert Gates has said trials at Guantanamo would lack legitimacy in the eyes of the world, and former Secretary of State Colin Powell said he would close Guantanamo "not tomorrow, but this afternoon."

Make no mistake: We must track down, prosecute and punish terrorists. But we must never forget we are a nation of laws. This makes us strong, not weak. The Bush administration's failed legal experiment at Guantanamo hurts the United States around the world every day. The time has come to close it down.

Dianne Feinstein is the senior U.S. senator from California.

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