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Roy Gutman.

How many detainees were wronged?

COMMENTARY | April 20, 2009

McClatchy Foreign Editor Roy Gutman argues that we won't genuinely understand the scope of Bush's detainee program until we fully document each detainee's experience and make amends to those who were wrongly held and mistreated. First in a series of articles calling attention to the things we still need to know about torture and other abuses committed by the Bush administration after 9/11.

For Roy Gutman, getting the full picture of the Bush administration's treatment of detainees has to start with a reckoning of exactly what happened to each and every one.

"I think the public deserves an accounting for every single person who has been held in the so-called 'war on terror'," says Gutman, adding that the detainees and their families deserve it, too.

And once that's done, he says, the next steps will become clear -- including making sure that justice is served. "Any terrorist who committed a crime should be accountable and have due process; and anyone in government who committed a crime should be accountable and have due process," Gutman says. "And those against whom no case was or could be made -- and especially those who were held wrongly -- deserve compensation and an apology. That's what justice in a democracy is all about. We have to come clean."

Gutman, the foreign editor for McClatchy Newspapers, won a Pulitzer Prize for his coverage of the 1993 war in Bosnia-Herzegovina , and co-edited the book Crimes of War: What the Public Should Know.

He also was an editor on Guantanamo: Beyond the Law, a monumental multi-media project eight months in the making, for which McClatchy sent reporters to 11 countries to interview 66 freed Guantanamo and Afghanistan prison detainees.

One big handicap the McClatchy reporters faced was not having access to official U.S. documents, Gutman says. An official investigation, whatever its form, would presumably not have the same problem, so its first order of business should be to collect all the relevant records and go through them, he says. But the records are not enough.

Step two would be to "send out experts – some unemployed journalists maybe – to talk to every former detainee and reconstruct their complete story at the local, human level as an expansion of the effort we made." Each detainee would then have a dossier containing "the completest possible picture of the individual."

Gutman then envisions the dossiers being reviewed by experts – perhaps by panels made up of people with military or legal backgrounds. Retired members of the Judge Advocate General corps, who Gutman considers among the unsung heroes of the last eight years, would be good candidates.

He suggests that the panels offer recommendations for what should happen to each person, potentially on something like a ten-point scale, one meaning the appropriate resolution is for the person to be held and charged, ten meaning they're owed an apology and compensation. Gutman says based on the fact that the government has already freed more than two thirds of those men it held, he suspects that 90 percent of detainees would end up on the high end of that scale.

"Once you've figured those things out, then the lessons will suggest themselves," Gutman says. "But it's this lack of an overview that I feel is why Americans have not dug into this."

The complete picture "gives you a lot of material to use in questioning those responsible, and go straight up the line," he says. Among the questions that need to be answered: "Who thought these procedures up? What safeguards did they put in? What law did they cite? And if it was just by seat of the pants, by whose authority?"

Gutman's experience covering war crimes in other countries tells him that there can be serious consequences if a nation and its people don't fully come to terms with the mistakes the government has made. "Deterrence is the name of the game," he says. Exposing what happened "completely and thoroughly -- and shaming those who did it -- may be every bit as powerful a deterrent to future illegal action as criminal prosecution."

Gutman cites as an example the successful conclusion of the war-crimes trials for the former Yugoslavia at the Hague. It took almost 15 years, but "what they've really done best, I think, is to write a history that will stand up, so that nobody can ever deny what happened or invent a phony story that will give rise to another round of killing."

If an investigation of the Bush era clearly exposes war crimes on the part of government, and Gutman thinks that's likely, then the U.S. government should prosecute -- or someone else will do it. The way war crime violations work, "if you've broken the rules in an open way and are known to have broken them, under the principle of universal jurisdiction, you can be arrested somewhere else, anywhere else. And there's no statute of limitations on war crimes," he says.

International tribunals should be the option of last resort. "Justice should be done at the lowest possible level -- and the local level first," Gutman says. Something like the International Criminal Court only kicks in when everything else fails. "You don't set up an international tribunal for a country where the justice system functions and they're going after their own criminals," Gutman says.

Finally, there’s the issue of policy going forward. Gutman thinks there’s a need to clarify certain legal principles that Bush intentionally muddled, most notably who is covered by what parts of the Geneva Conventions. In a February 2002 memo, Bush denied suspected Taliban and al Qaida detainees prisoner-of-war status. He also denied them the basic Geneva protections known as Common Article Three, which prohibits cruel treatment and humiliation. In June 2006, the Supreme Court ruled that Common Article Three did in fact apply to all detainees. But who exactly is a prisoner of war in the war on terror – and therefore entitled to all the Geneva protections? That needs to be better resolved.

Gutman recognizes that the public is not exactly up in arms right now, demanding a full-scale investigation of detainee practices. "People don't want to know those things. They make you feel bad. They should make you feel guilty, if you got the wrong guy," he says. His experience in other countries suggests that "a lot of people look the other way. A lot of people are in denial. Only a tiny fraction ever insist on accountability."

But in Gutman's view, "the rule of law requires nothing less. This is not sort of airy-fairy utopian thinking. This is rule of law. We have been leaders, since the beginning of the republic, on insisting on the rule of law… so we have that trend, that history of it…

"Why do we do this? I think it's because it's such a free place. And we know that law is the anchor of this freedom. It keeps on reasserting itself against power…. People who are angry with the government for doing something, they may not have the power but they have the law…

"Everyone in this country deserves to know who created this massive system of injustice."

Gutman says he realizes that the notion of compensation is not an element of today's public discourse. "It's taboo to raise the issue," he says. But if we "had the wrong guys and we held them, of course we have to apologize and compensate," he says.

-- Dan Froomkin, froomkin@niemanwatchdog.org

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