GUANTÁNAMO BAY, Cuba, Nov. 7 - Each day, several shackled
detainees are marched by their military guards into a
double-wide trailer behind the prison camp's fences and
razor wire to argue before three anonymous military
officers that they do not belong here.
One, a 27-year-old Yemeni, spent more than an hour on
Saturday telling a panel that he was not a member of Al
Qaeda or a sympathizer, saying that he had never fought
against the United States and should never have been
detained here at Guantánamo as an unlawful enemy combatant.
The Yemeni, a scraggly-bearded man bound hand and foot, sat
in a low chair, his shackles connected to a bolt in the
floor, frustrating his efforts to gesture with his hands to
make his arguments. Inside the small, harshly lighted room,
he alternated between pleading his case and angrily
criticizing the process as unfair. Although he spoke Arabic
that had to be translated by a woman sitting beside him,
there was no mistaking his contempt for the panel members,
who sat on a raised platform about 10 feet away and whose
questions he ridiculed frequently.
These briskly conducted proceedings, which have received
little notice, constitute the Bush administration's
principal answer to the Supreme Court's ruling regarding
the rights of detainees who have been imprisoned since the
administration began its fight against terrorism after the
Sept. 11 attacks. The court ruled 6 to 3 in June that the
detainees had a right to challenge their detentions in
federal court, saying that even though the base is outside
the sovereign territory of the United States, federal
judges have jurisdiction to consider petitions for writs of
habeas corpus from those who argue that they are being
unlawfully held.
The hearings here have come under heavy criticism because
they do not meet the traditional standards of court
proceedings. For one thing, the detainees are left to argue
their cases for themselves, without assistance from
lawyers.
The hearings, formally called combatant status review
tribunals, were hurriedly devised and put into place just
weeks after the Supreme Court's ruling. The administration,
which has been battling to have the military retain as much
control as possible over the detainees, told a federal
court in Washington last week that the tribunals more than
satisfy the Supreme Court ruling. The government argued
that because of the tribunals, federal judges should reject
the dozens of petitions they have received from defense
lawyers asking them to intervene.
Capt. Charles Jamison of the Navy, who oversees the
tribunal proceedings here at Guantánamo, said he expected
to have them completed for all 550 remaining prisoners by
the end of the year. So far, some 320 detainees have
appeared before the tribunals, and so far, the Pentagon has
passed final judgment on 104. Of that group, 103 were found
to have been properly deemed unlawful enemy combatants and
properly imprisoned; one detainee was released.
Those deemed unlawful enemy combatants will have a chance
to argue in a separate proceeding that they should be
released because they are no longer a threat.
Even without any legal proceedings, the United States has
released more than 150 Guantánamo detainees to their home
governments, saying they no longer posed a threat, and it
is expected that many of the remaining ones will also be
released.
The Yemeni who appeared Saturday denied through his
translator that he had any affiliation with Al Qaeda. He
said the United States had no proof and "should know that a
person is innocent until proven guilty, not the other way
around." Throughout the hearing, the man, whose name may
not be published under the conditions set by the military,
complained, sometimes with sarcasm, that "this is like a
game."
An officer not on the panel acted as sort of a prosecutor
in assembling the charges, while yet another acted as the
detainee's personal representative to explain the
proceedings but not to serve as a defense lawyer. All the
officers had their name tags covered by tape.
Critics have complained that the tribunals are fatally
flawed, not only because the detainees do not have lawyers
but because they are generally hampered in disputing any
charges because they are not allowed to see most of the
evidence against them because it is classified.
Captain Jamison said the tribunals were administrative
procedures and thus did not have to meet standards of
regular criminal proceedings.
One official said it was apparent from the unconvincing
explanations of many detainees as to why they had been
carrying a gun or were at a battle site that they were
indeed enemy combatants.
Like detainees at all the hearings, the Yemeni was given an
unclassified summary of the charges, but the evidence to
support the most serious accusations is classified and was
considered in a closed session after he was taken back to
his cell.
In the public session, an officer told the panel that the
man was "a supporter of Al Qaeda" because he had traveled
to Pakistan from his home country and had been "recruited
by Jama'at al-Tabligh," an organization based in Pakistan
that posed as an Islamic missionary group but was really a
cover for helping Qaeda terrorists with travel
arrangements.
The man asked the panel, "Where's the proof?" He said that
if the government was claiming he had a connection to Al
Qaeda, "there should be evidence that I support Al Qaeda."
The Army colonel who was the panel's president responded,
"We're not here to debate these points." She said, "This is
what we're given and this is your opportunity to give us
your story."
The Yemeni was disdainful of another panel member, a Navy
commander, who asked him if he believed in jihad, answering
that he did so as all Muslims did but that that did not
mean he meant harm to America.
Another detainee, a 33-year-old Afghan who served as a
municipal police commissioner in his village, tried to
convince a different military panel on Thursday that he was
an unwilling member of the Taliban government. The man
admitted that he had supervised a ritual stoning to death
of three people charged with adultery but said he had not
chosen the people or the penalty.
A Tunisian detainee on Thursday decided at the last moment
to refuse to attend his hearing. His personal
representative, an Air Force lieutenant colonel, said the
Tunisian man said he had been told by Allah not to attend.
The officer, however, offered the detainee's responses to
the charges that he was a member of Al Qaeda and had a
Kalashnikov assault rifle when he was captured.
About a third of the detainees decline to attend the
tribunals, officials said, and they are then tried in
absentia, as was the Tunisian prisoner. The military has
established a panel at the Pentagon to hear many of those
cases. There are four panels here at Guantánamo.
The detention of hundreds of men at Guantánamo has led to a
variety of legal proceedings, some wholly contained within
the military and others involving federal courts.
Last week, for example, a military commission heard
pretrial motions in the set of war-crimes trials being
conducted on a different part of the base. Four detainees
have been charged in those proceedings.
The war-crimes trials before a military commission have
faced difficulties, including translation problems and
complaints from military lawyers that the officers on the
panel are unsuitable. Although the war-crimes proceedings
are separate from reviews of the detainees' enemy combatant
status, the two collided last week. One of the three
officers on the military commission trying war crimes asked
to see the information from the combatant review tribunal
for David Hicks, 29, an Australian who is charged with
terrorism and attempted murder and whose case was being
considered last week.
Joshua Dratel, a civilian lawyer from New York representing
Mr. Hicks, erupted in anger in the courtroom, saying it was
outrageous for the commission to consider information from
a proceeding with lesser guarantees of due process.
"This man is on trial for his life," Mr. Dratel said. He
said that for the military commission to consider accepting
evidence from the other proceeding - a proceeding in which
the prisoner cannot confront his accuser or see all of the
evidence against him - showed that the war-crimes trials
were "not just on a different island from the rest of the
world but a different planet."
Lt. Col. Sharon Shaffer, the deputy chief judge of the Air
Force who is defending another detainee before the
war-crimes commission, said it was wrong for an enemy
combatant review tribunal to question a detainee who was
represented by a lawyer in other proceedings. Colonel
Shaffer represents Ibrahim Ahmed Mahmoud al Qosi of Sudan,
who is charged with conspiracy to commit murder and
terrorism. The colonel instructed Mr. Qosi to demand that
one of his lawyers accompany him to the enemy combatant
tribunal. She said they simply tried him in absentia and
declared him an enemy combatant.
Conversations with senior military officials suggest that
there is an informal expectation that after most of the
detainees are found to be enemy combatants, the military
will start releasing what eventually will be a majority of
them after yet another set of proceedings. Those
proceedings, called annual review boards, are expected to
start as early as next month and are supposed to determine
if the enemy combatant remains a threat and may be
released. One official said that approach would allow the
military to assert that most of the detainees were not
wrongfully imprisoned, but it would also provide a solution
for the administration's desire not to hold such a large
number for years.
The administration has asserted that the Guantánamo
detainees are not entitled to the prisoner-of-war
protections of the Geneva Conventions as they do not meet
the criteria of regular soldiers. International lawyers
have criticized the United States, saying that the Geneva
Conventions require hearings to determine whether they can
be deemed other than P.O.W.'s.