Legal proceedings on Gitmo detainees called “sham”

Bill Weinberg

From AP, Nov. 16:

SAN JUAN, Puerto Rico – The U.S. military called no witnesses, withheld evidence from detainees and usually reached a decision within a day as it determined that hundreds of men detained at Guantanamo Bay were “enemy combatants,” according to a new report.

The analysis of transcripts and records by two lawyers for Guantanamo detainees, aided by more than two dozen law students, found that hearings that determined whether a prisoner should remain in custody gave the accused little opportunity to contest allegations against him.

“These were not hearings. These were shams,” said Mark Denbeaux, an attorney and Seton Hall University law professor who along with his son, Joshua, is the author of the report. They provided an advance copy of the report to The Associated Press late Thursday and planned to release it Friday on the Internet.

Their report, based on an analysis of records of military hearings of 393 detainees, comes as the U.S. government seeks to severely restrict detainee access to civilian courts, arguing that the Combatant Status Review Tribunals should be their main legal recourse.

Navy Cmdr. Jeffrey Gordon, a Pentagon spokesman, dismissed the findings as “recycled allegations,” and noted the tribunals gave each detainee an opportunity to contest their designation as an enemy combatant.

“It is not a criminal trial and is not intended to determine guilt or innocence,” Gordon said. “Rather, it is an administrative process … to confirm the status of enemy combatants detained at Guantanamo as part of the Global War on Terrorism.”

The military held Combatant Status Review Tribunals for 558 detainees at the U.S. Naval Base at Guantanamo Bay in southeast Cuba between July 2004 and January 2005 and found all but 38 were enemy combatants. Handcuffed detainees appeared before a panel of three officers with no defense attorney, only a military “personal representative.”

According to the report, the representatives said nothing in the hearings 14 percent of the time and made no “substantive” comments in 30 percent. In some cases, the representative even appeared to advocate the government’s position, the report said.

The report is based on transcripts of tribunals that the government first released earlier this year in response to a Freedom of Information Act lawsuit filed by The Associated Press as well additional records provided by lawyers for 102 Guantanamo detainees.

Twenty-one first-year law students at Seton Hall University in Newark, N.J., analyzed the documents to create a database analyzed by eight second- and third-year students.

Among their findings:

* The government did not produce any witnesses in any hearing.
* The military denied all detainee requests to inspect the classified evidence against them.
* The military refused all requests for defense witnesses who were not detained at Guantanamo.
* In 74 percent of the cases, the government denied requests to call witnesses who were detained at the prison.
* In 91 percent of the hearings, the detainees did not present any evidence.
* In three cases, the panel found that the detainee was “no longer an enemy combatant,” but the military convened new tribunals that later found them to be enemy combatants.

“No American would ever consider this to be hearing,” Denbeaux said. “This is a show trial.”

The U.S. military now holds about 430 men at Guantanamo on suspicion of links to al-Qaida or the Taliban and holds Administrative Review Boards for them once a year to determine whether they should still be held, released or transferred to another country.

The Military Commissions Act, which President Bush signed on Oct. 17, strips all non-U.S. citizens held under suspicion of being an enemy combatant of their right to challenge their detention in civilian courts with petitions of habeas corpus.

See our last post on the torture scandal.

  1. CIA admits secret interrogation directives
    From New York Times, Nov. 15:

    WASHINGTON: The CIA has acknowledged for the first time the existence of two classified documents, including a directive signed by President George W. Bush, that have guided the agency’s interrogation and detention of terror suspects.

    The CIA referred to the documents in a letter sent last Friday from the agency’s associate general counsel, John McPherson, to lawyers for the American Civil Liberties Union.

    The contents of the documents were not revealed, but one of them is “a directive signed by President Bush granting the CIA the authority to set up detention facilities outside the United States and outlining interrogation methods that may be used against detainees,” the civil liberties union said, based on its review of published accounts.

    The second document, according to the group, is a Justice Department legal analysis “specifying interrogation methods that the CIA may use against top Al Qaeda members.”

    Civil liberties lawyers said they would urge public disclosure of the contents of the documents. “We intend to press for release of both of these documents,” Jameel Jaffer, a lawyer for the group, said in a statement. “If President Bush and the Justice Department authorized the CIA to torture prisoners, the public has a right to know.”

    A spokesman for the CIA declined to discuss the matter.

    The documents had been sought by the civil liberties union in a suit filed in a court in New York under the Freedom of Information Act. The suit has previously led to the disclosure of thousands of documents from the Defense Department, the FBI, the Justice Department and other agencies.

    In the past, CIA lawyers have sought to avoid any discussion of whether the agency had documents related to its interrogation and detention practices, the civil liberties union said. The group added that the CIA had said national security would be jeopardized if it were compelled to disclose in any way its involvement in interrogations.

    In the CIA letter, McPherson confirmed the existence of the documents but declined to release them, saying that essentially all of their contents were exempt from disclosure under the Freedom of Information Act because release would damage national security and violate attorney-client privilege.

    The civil liberties organization sought the documents based on references to them in various news accounts. While both documents have been written about before, the CIA had not previously acknowledged their existence.

    Bush said in September that 14 terrorism suspects had been moved from secret prisons overseas to the detention center at Guantánamo Bay, Cuba.