Sorry about the torture; we thought you were one of the terrorists

Here’s the problem with Guantanamo Bay — and secret CIA prisons on foreign soil — in a nutshell: If the prisoners being held there are illegal enemy combatants, then most Americans believe they do not deserve all the procedural niceties afforded by the Constitution. But the only fair way to figure out if a prisoner qualifies as an illegal enemy combatant is to follow the procedural niceties guaranteed by the Constitution.

And the Bush administration hasn’t even come close.

Take Khaled el-Masri. He was kidnapped by American agents while he was vacationing in Macedonia in 2003. He was beaten, stripped, dressed in a diaper and sweatsuit, and then chained, spread-eagle, to the floor of an airplane. He was flown to Afghanistan — where he was held incommunicado and, he says, tortured in a secret prison for five months. By then, U.S. agents realized they had the wrong guy. Khaled el-Masri was not, in fact, Khalid al-Masri, the terrorist. Whoops, sorry about that! El-Masri was then dumped in Albania and left to find his way home.

ON TUESDAY, citing the state secrets doctrine, the Supreme Court said el-Masri could not bring a civil suit in U.S. court. Germany’s parliament continues to investigate the episode.

If el-Masri’s were an isolated case, that would be one thing. But it is not. Maher Arar, a Canadian citizen, was kidnapped by U.S. agents and spirited to Syria, where authorities tortured him for 10 months. A subsequent inquiry by Canadian authorities determined “categorically” that there was “no evidence to indicate that Arar has committed any offense.” El-Masri and Arar are not alone.

How do Americans know the prisoners held captive in Guantanamo are not also victims of the fog of war but are, as the Bush administration claims, the “worst of the worst”? We don’t.

Take Australian David Hicks, the first Guantanamo prisoner to be convicted under the 2006 Military Commissions Act. According to press reports, “The high school dropout, Muslim convert, and al-Qaida recruit fought for two hours alongside the Taliban before he sold his rifle for taxi fare and was captured trying to escape Afghanistan in December 2001.” He was held at Guantanamo for more than five years before pressure from the Australian government led to a plea agreement — in which Hicks was sentenced to all of nine months’ imprisonment, on condition that he stop alleging that he was physically abused.

THE ADMINISTRATION has turned other Guantanamo prisoners loose. And theoretically, each of the remaining prisoners was determined to be rightfully held by the Combatant Status Review Tribunals established by the Office for the Administrative Review of the Detention of Enemy Combatants.

But in late July U.S. Army Reserve Col. Stephen Abraham testified before Congress that those tribunals, in which he played a key role, were a charade.

The military intelligence officer and former lead counter-terrorism analyst for the Joint Intelligence Center, Pacific Command told the House Armed Services Committee “there is no question that individuals who have attacked the United States should be punished, and that those who are preparing to attack the United States must be stopped. I have devoted my military career to identifying such individuals and their organizations, and to helping our country counter such threats.”

But, as he explained at length to the committee, the CSRT system “was designed to fail. This committee should place no reliance on the procedures or the outcomes of those tribunals. The CSRT panels were an effort to lend a veneer of legitimacy to the detentions, to ‘launder’ decisions already made. The CSRTs were not provided with the information necessary to make any sound, fact-based determinations as to whether detainees were enemy combatants. Instead, the OARDEC leadership exerted considerable pressure, and was under considerable pressure itself, to confirm prior determinations that the detainees in Guantanamo were enemy combatants and should not be released.”

UNDER THE Military Commissions Act, new combatant-status reviews have been ordered. But although the accused can appeal their convictions on technical grounds, actual innocence is not a basis for overturning a verdict. And statements obtained through torture before 2006 are still admissible as evidence.

President Bush himself has said Guantanamo should be closed. But what to do with the prisoners there? They cannot all simply be released — in some cases because their nation of origin will not take them back, in others because they constitute too great a threat to national security. But they cannot easily be moved to prisons in the U.S. According to Philip Zelikow, former legal counsel at the State Department, “litigation risk has been, by far, the No. 1 argument against shutting down Guantanamo.” Once on U.S. territory, the detainees would automatically gain more legal rights. And in some instances that could prove embarrassing to the U.S.

Thus the Bush administration has painted itself into a corner. It might need to keep some prisoners at Guantanamo in perpetuity — in order to avoid admitting they never should have been sent there in the first place.

A. Barton Hinkle is deputy editor of the Richmond Times-Dispatch’s editorial pages.