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Originally published Friday, July 8, 2011 at 2:55 PM

Guest columnist

The impossible task of predicting future actions of Guantánamo Bay detainees

About 171 men are still detained at the U.S. detention center at Guantánamo Bay. Guest columnist Jamie Mayerfeld urges Congress reject a bill that impossibly would require proof they pose no future threat before they can be released.

Special to The Times

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IMAGINE yourself under arrest and locked up. Having committed no crime, would you be confident that your innocence would set you free? What if the government imprisons you not for something you did but for something you might do? Could you prove that you pose no future threat?

Such a scenario seems outlandish, yet it is precisely the logic behind legislation that Congress is getting ready to enact regarding Guantánamo detainees. The bill passed the House of Representatives and will soon come to a vote in the Senate. Individuals never shown to be dangerous, much less convicted of a crime, must remain in U.S. detention unless our government certifies that they cannot cause harm in the future.

Here is the background. Of the 779 individuals shipped to Guantánamo since January 2002, only 13 were ever charged with a crime. The 171 men still detained have been divided into three categories by President Obama's Guantánamo Review Task Force, functioning as a kind of bureaucratic tribunal without the formal participation of detainees or their lawyers. Thirty-six have been referred for prosecution, 46 will be kept in indefinite detention without trial, and 89 are designated for transfer to other countries.

It's bad enough that President Obama has instituted indefinite detention without trial and is prosecuting other detainees in the procedurally unsound military commissions, which in at least one case have allowed statements extracted by torture.

Now Congress is poised to make things worse by trapping the detainees cleared for transfer. Under the new bill, no prisoner may be released unless the country to which he is sent meets several conditions certified by the U.S. secretaries of State and Defense. The receiving government must not be a designated state sponsor of terrorism, must "ensure that the individual cannot take action to threaten the United States, its citizens, or its allies in the future," and must "ensure that the individual cannot engage or re-engage in any terrorist activity."

If the detainee's home country is unwilling or unable to provide the necessary assurances and if no other country will take him, he is out of luck. He will remain locked up, not because of anything he did, but because his government chooses not to cooperate, or our government determines that its cooperation is inadequate.

Human-rights organizations estimate that most prisoners shipped to Guantánamo were never involved in terrorist activity. This view is quietly shared by American officials. Lawrence Wilkerson, former chief of staff to Secretary of State Colin Powell, has sworn under oath that President Bush, Vice President Cheney and Secretary of Defense Donald Rumsfeld knew in 2002 that most Guantánamo detainees were innocent.

Former detainees include Murat Kurnaz of Germany, whose imprisonment was justified on the grounds that his friend had carried out a suicide bombing in Istanbul. Leaving aside the oddity of detaining Kurnaz for something his friend did, it turned out that his friend never took part in the bombing, but was alive and well in Germany. Although internal Pentagon documents dating from 2002 cleared Kurnaz of any link to al-Qaida or terrorist activity, he was kept in detention and tortured for the next four years.

Such stories remind us why we must honor the presumption of innocence. Congress would reverse this principle, forbidding the release of any prisoner unless his harmlessness, not just now but in the future, is publicly certified.

But that is not all. The legislation also bars a prisoner from being transferred to his home country or a third country if another detainee previously sent to the same country went on to commit a terrorist act — another instance of guilt by association.

A bill that punishes unconvicted individuals for other people's acts and that locks them up until proof is furnished of their present and future harmlessness violates elementary principles of human decency. By imposing punishment without trial, it violates the constitutional requirement of due process and ban on bills of attainder. Our U.S. senators, Patty Murray and Maria Cantwell, must stop this cruel and tyrannical bill.

Jamie Mayerfeld is associate professor of political science and faculty associate of the Center for Human Rights at the University of Washington.


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