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Last Updated: Monday, 6 December, 2004, 18:07 GMT
Letter: Military lawyers defend civil liberties
By Robert Hodierne
Senior managing editor of the Military Times

Robert Hodierne, an editor of publications for and about the American military, considers alleged infringements of civil liberties in the United States that are a result of security measures in President Bush's war against terror.

He says that, surprisingly, it is often military lawyers who are turning out to be the main defenders of basic freedoms and challenging the government.

Arab Americans
Muslims in America have come under pressure since 9/11
One of the things you count on when you're a law-abiding citizen of a place like America or Britain is that the police won't show up at your office one fine morning, haul you away and throw you into solitary confinement.

Portland, Oregon, does not seem a likely setting for such a draconian police action. The city, in the Pacific northwest, is an earnestly progressive place: San Francisco without the colourful characters, Canada without socialised medicine.

Brandon Mayfield has a small, one-man law practice there. The 38-year-old man served eight years as a military intelligence officer in the US Army.

He had a top secret clearance. He is married, the father of three daughters. He had never before been arrested.

But one morning last May a pair of FBI agents showed up at his office, handcuffed him and took him away.

Wrongly accused

They told him that his fingerprints had been found on a bag of explosives used in the Madrid train bombing that killed 191 people in Spain last March.

It was a stunning bit of news to Mayfield. He had not been out of the country in a decade. He has never been to Spain.

Brandon Mayfield
The FBI apologised for the error that led to Mr Mayfield's arrest
And if the fingerprints weren't enough there was all this other stuff the FBI found out about Mayfield.

He was a convert to Islam. His wife was from Egypt. She and the daughters covered their heads in the traditional Muslim way.

The whole family attended services at a mosque. And he had represented a man convicted of conspiring to wage war against the United States in Afghanistan.

Represented him, mind you, not in his criminal case but in a child custody fight.

But wait, the FBI had more. Using secret court orders they sneaked into Mayfield's home and office, searched through his belongings and planted listening devices.

And when they did their sneaking and peeking, they found the Mayfields had information about Spanish trains. They found a Koran.

Reason enough except... Those fingerprints on the bag of explosives? Well, one fingerprint. Or part of a fingerprint.


Ever since, there has been a lot of finger-pointing between Spanish police and the FBI.

The Spanish say they told the FBI they were not certain of the accuracy of the fingerprint identification. The FBI say, "Well, it was a pretty lousy faxed copy you sent us."

And back and forth while Mayfield sat in jail.

As it turns out, it was not Mayfield's fingerprint after all. It came from the finger of an Algerian man described by Spanish officials as having ties with al-Qaeda.

And so it goes in America in our war against terrorists.

Prisoner at Guantanamo
Prisoners have been detained at Guantanamo without trial
Under the almost unassailable claim of protecting the country against terrorists, we have seen a decline in our civil rights - to the point where a man like Mayfield can find himself thrust into a nightmare straight out of Kafka.

What is all the more Kafkaesque about the Mayfield case is this: It appears the FBI realised early on it had made a mistake, but for reasons of bureaucratic self-protection it was slow to right the wrong it was doing to Mayfield.

An internal FBI investigation later laid the blame on one technician.

"Once the mind-set occurred with the initial fingerprint examiner, the subsequent examinations were tainted," the report said.

The lesson here is obvious and hundreds of years old - bad things happen when bureaucrats are given extraordinary, unsupervised authority.

The FBI finally did apologise to Mayfield and set him free after two weeks in jail, most of it in isolation.

Which is better than the way the Army treated Captain James Yee.

Solitary confinement

Yee, a graduate of the US Army Military Academy at West Point, is also a convert to Islam. In fact he became a Muslim chaplain in the Army.

He was assigned to the prison at Guantanamo Bay, Cuba, where he ministered to the Muslim prisoners we hold there.

Yee was arrested in 2003 and charged with having secret documents about the prison camp.

The military let it be known that it believes Yee was part of a ring of Muslim spies at Guantanamo.

Two other Muslims - an airman and a civilian - were also charged. One case is still pending but the charges against Yee and the airman were dropped.

The United States operates a safe, humane and professional detention operation
Pentagon spokesperson
But not before the military investigators took Yee's life apart and made their findings public.

In the course of trying to make the spying charge stick, the investigators found that Yee had had an affair and he had pornographic images on his government computer.

Not only was he a spy but a dirty-minded one at that.

The government eventually dropped the spying charges, which they said they could not prove, but only after Yee had spent 76 days in solitary confinement.

The government did, however, punish Yee for the military offences of adultery and misuse of a government computer. He left the Army and no one has ever apologised to him.

Hollow phrase

In America, we do not usually look to our military to salvage the reputation of our legal system.

In fact, for much of the post 9/11 era, the military has worked, however unintentionally, to convince the rest of the world that "innocent until proven guilty" is a hollow phrase if you're foreign and Muslim.

The prison it runs at Guantanamo has, for many, come to symbolise a power-crazed America answering to no law except its own might.

Hundreds of prisoners - we will probably never know the exact number - have been held at Guantanamo with no charges against them, no lawyers to represent them, and no independent judicial review of their plight.

A state of war is not a blank cheque for the president
US Supreme Court
These rights are taken by Americans as birthrights, among the best of things that we inherited from Britain.

By the first anniversary of the attacks on New York and Washington, the White House announced that the stream of prisoners being sent to Guantanamo - having been denied the protection of the US Constitution - would not enjoy even the protections of the Geneva Conventions on the treatment of prisoners of war.

The military and its civilian bosses argue that terrorists are not fighting fair - not like real soldiers - and hence forfeit the right to be treated fairly.

Just last week, the New York Times reported that the International Committee of the Red Cross "has charged in confidential reports to the United States government that the American military has intentionally used psychological and sometimes physical coercion 'tantamount to torture' on prisoners at Guantanamo."

Asked about the accusations in the report, a Pentagon spokesman told the Times that "the United States operates a safe, humane and professional detention operation".

Constitutional violations

The original plan was to try these detainees before military tribunals.

In those proceedings, they would not be allowed to see all the evidence against them, hearsay evidence would be permitted and there would be would be no independent appeal from the tribunal's judgement.

Captain James Yee
From chaplain to prisoner: Captain Yee spent 76 days in custody
The military did assign two mid-ranking Navy lawyers to represent the prisoners. For months the two lawyers had no access to any defendants, which normally would make it difficult for them to do their job.

But Lieutenant Commanders Charles Swift and Philip Sundel stunned almost everyone by mounting what has been a surprisingly effective legal campaign.

At the beginning of the year they challenged the legal authority of the government to try the Guantanamo prisoners by military tribunal.

In their brief the military lawyers compared President Bush to King George III.

George III does not enjoy a good reputation in this country. Both Bush and George, the brief said, improperly elevated the military above civil authority.

Then in April, the two lawyers sued President Bush and Defence Secretary Donald Rumsfeld on behalf of the prisoners.

They said the plans for military tribunals violate the Constitution, federal law, the Geneva Conventions and the Uniform Code of Military Justice.

Power struggle

They argued that civil courts have the jurisdiction to hear challenges to the tribunals.

And here is where the legal fights got interesting.

Right now in the United States there is an epic power struggle going on between the judiciary and the executive branch.

Basically, the executive branch - the president - argues that it has the final authority over the treatment of people captured in the war on terror, whether they are foreigners or American citizens.

In June, the most conservative supreme court in several generations slapped the president down, saying that "a state of war is not a blank cheque for the president".

Since then there has been a lot of back and forth in the courts and that epic struggle marches forward.

One last note: Brandon Mayfield, the Portland lawyer thrown in jail falsely. He is not satisfied with a mere apology.

He's doing what any self-respecting American lawyer would do. He's suing the government.

Letter is a BBC World Service series in which one of a panel of international broadcasters give their views on the latest political, cultural or social developments in his or her region.


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