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By PETER HIRSCHFELD Staff Writer
 
MONTPELIER—Robert Gensburg, a St. Johnsbury lawyer who represents an Afghan detainee at the Guantanamo Bay Naval Base prison, says civil rights violations perpetrated against "enemy combatants" in Cuba threaten to undermine the constitutional precepts that safeguard U.S. citizens everywhere against unjust imprisonment.

"I personally never make slippery-slope arguments," Gensburg told members of the Vermont American Civil Liberties Union at their annual meeting in Montpelier Saturday. "But our country, in this case, is on a very slippery slope."

Gensburg is one of three Vermont lawyers representing Guantanamo detainees in one of the most controversial government cases in U.S. history.

Robert Rachlin, a partner at the state's largest legal firm, and David Sleigh, Gensburg's St. Johnsbury colleague, also represent detainees. Sleigh's client, an Afghan pharmacist, has since been released.

"The first principle, almost by which I live, is adherence to the rule of law," Genburg says. "With this administration, the rule of law is undergoing very serious erosion."

President George Bush declared the global war on terror on Sept. 12, 2001. Since then, the U.S. military has captured hundreds of alleged al-Qaida insurgents on battlefields in Afghanistan, Iraq and elsewhere. Many of those prisoners were sent to an American detention center in Guantanamo Bay, Cuba, where, as of Oct. 16, approximately 435 foreign citizens remained in custody.

Rather than try these enemy combatants in U.S. courts, Bush opted to use a military tribunal system last employed 60 years ago by Franklin Roosevelt to prosecute Nazi war criminals. The Geneva Conventions were created in 1949 to set international legal standards for fair treatment of people captured on the battlefield. The conventions were ratified by 194 countries, including the United States. Gensburg says the military tribunal system Bush has pushed for violates the fundamental tenets of the Geneva Conventions.

Gensburg's client, a 33-year-old stonemason named Abdul Zahir, has been held at Guantanamo since the facility opened in 2002. Zahir has three children – ages 8, 6 and 4 – the youngest of whom had not yet been born when he was picked up in Afghanistan by U.S. forces during their fight against the Taliban government.

Gensburg's and Rachlin's grievances are numerous. Among them:

? One of the foundations of U.S. justice, called habeas corpus, grants prisoners the right to challenge their own detention. The U.S. Constitution says the government can suspend habeas rights only in a time of insur-rection or invasion, however the habeas petitions filed by Gensburg and Rachlin on behalf of their clients have yet to be heard.

? The charge filed by the government against Zahir – conspiracy – wasn't a crime until the U.S. Congress made it so in the Military Commissions Act of 2006 (signed into law last Tuesday by Bush). Zahir and other detainees are nonetheless being charged with a crime that didn't exist when they were taken into custody.

? The Military Commissions Act – a congressional response to the Supreme Court's ruling in Hamden vs. Rumsfeld that said the Guantanamo military tribunals are unconstitutional – not only allows the president to authorize torture, but says that evidence collected as a result of that torture can be used against Guantanamo defendants. Further, if the military tribunal determines evidence against a defendant should be classified, then the defendant has no right to hear that evidence or know from whom it came. As Rachlin explains, his client could ultimately be convicted without hearing the evidence against him.

"It puts the detainee in an absolutely impossible position and the lawyer in an impossible position," Rachlin says. "It's an absolutely bizarre system."

Gensburg says citizens should be suspicious of what he calls the fear-mongering used by Bush and the executive branch to justify the military tribunals.

"The reason for this behavior given by the government is that national security requires it," Gensburg says. "It's time to stop and question the national security claims the government is trying to make."

Both lawyers argue that traditional U.S. district courts have proven themselves capable of hearing cases involving foreign citizens suspected of terrorism, a claim supported by the more than 200 successful prosecutions of alleged terrorists since 9/11.

"The fact of the matter is that we've long since had a provision in regular criminal courts for dealing with classified information," Rachlin says.

Gensburg faults the legislative branch (with the exception of Vermont's congressional delegation, which he lauds) for kowtowing to the Bush administration out of fear of being pegged as soft on terrorism come election day.

"You have a lapdog Congress," says Gensburg, who calls the Military Commissions Act an "awful piece of legislation… They have no spine."

He is equally hard on the press, which he calls "abysmal" in its coverage of the Guantanamo military tribunals.

Gensburg won't guess where the "slippery slope" is heading or what will become of the Supreme Court challenges to the tribunals expected to be filed in coming months and years.

Nor will he predict what might ultimately happen to their clients. But both lawyers encourage Vermonters to see the issue for what they believe it is: a battle for civil rights that could have implications far beyond Guantanamo Bay.

"What they're doing in Guantanamo is being done in your name and my name," Rachlin says. "One thing we do not have the right to do is not think about this at all."