Author continues debate on Guantanamo detainees

WASHINGTON -- As court hearings resume at Guantanamo Bay this week, the U.S. Supreme Court's recent decision to uphold the trial rights of detainees held there continues to generate debate.Among those weighing in is Steven Wax, an attorney who battled the federal government on behalf of Guantanamo detainees."The ruling was a reminder that the president's power is not as extreme as the Bush administration has asserted," said Wax, a federal public defender in Oregon and author of "Kafka Comes to America: Fighting for Justice in the War on Terror."On June 12, the court upheld habeas corpus for detainees, voting 5 to 4 that they have the right to petition a judge for their release, instead of petitioning military tribunals.In a dissenting opinion, Justice Antonin Scalia said the majority's decision "will make the war harder on us" by forcing the government to provide civilian courts evidence supporting each detention, setting an impossible standard for soldiers on the front lines."It will almost certainly cause more Americans to be killed," he wrote. "The nation will live to regret what the court has done today."The court has twice before afforded detainees access to civilian courts, in 2004 and 2006. Both times, the government wrote legislation restricting judicial review of detentions and removing habeas corpus rights.It was following a previous court opinion that Wax got involved, volunteering to take seven Guantanamo cases, resulting in four releases.In the book, Wax recounts his defense of two men: Brandon Mayfield, an Oregon lawyer accused of participation in the Madrid, Spain train bombings in 2004, and Adel Hassan Hamad, a Sudanese man held without charge in Guantanamo.Hamad, a hospital administrator, was taken from his home in Peshawar, Pakistan and held at Guantanamo for more than 2,000 days."What I was told by our president ... was that all of the men in Guantanamo were the worst of the worst in the world," Wax said. In fact, "fewer than eight percent, less than one out of ten, were ever in or part of al Qaeda."Wax also said fewer than 5 percent of detainees were picked up on a battlefield and fewer than half were accused of committing a hostile act, including Hamad.In defending Hamad, Wax visited dignitaries in the Sudan, convincing the Sudanese foreign minister to write a letter to Secretary of State Condoleezza Rice.Hamad was released in December 2007.In 2004, the FBI arrested Mayfield of Beaverton, Ore., claiming his fingerprints matched a print found on a terrorist's backpack following the Madrid train bombings. Mayfield faced the death penalty in U.S. federal district court.But Mayfield was released from custody 19 days later, after Spanish investigators said they had made a mistake and identified Mayfield in error."The zeal to solve this big crime . . . caused them to make mistakes in judgment," Wax said at an appearance in Washington, D.C. as part of a national book tour.Wax said circumstantial evidence is used too often used in detaining terror suspects.Wax said the FBI's affidavit for a warrant for Mayfield's arrest included the fact that he was a Muslim, having converted before marrying his Egyptian wife. It also included the political views of a convicted terrorist that Mayfield had defended in a child custody battle.Authorized by the Patriot Act, FBI agents had done sneak-and-peek searches of Mayfield's home without leaving a warrant previous to his arrest.Mayfield sued the government in 2006 and was awarded $2 million.Wax said the Supreme Court's decision might lead to more releases. He said the government wouldn't want trials to expose detainees' treatment in Guantanamo or the reasons why they were sent there.Victor Davis Hanson, senior fellow at Stanford University's Hoover Institution and a nationally syndicated columnist, took issue with the Supreme Court's decision, which he called unprecedented in extending citizenship privileges to out-of-uniform foreign combatants."Philosophically, it suggests that one judge can overturn millions of hours of legislative research and give and take with the executive branch," he said.Hanson said soldiers in the field will now concern themselves with whether they can properly justify enemy detentions and methods of capture, and properly inform combatants of their rights while under fire."It's fine in theory; It's probably done in fact, in some cases, but that's not what combat is really like," Hanson said.(Distributed by Scripps Howard News Service, http://www.scrippsnews.com)