Rights Groups Accuse Pentagon of Subverting Court
Ruling on Guantanamo Detainees
the Pentagon claims that it is trying to expedite the implementation
of last week's decision by the Supreme Court to provide fair reviews
of the status of some 594 terrorist suspects held at the U.S. base
at Guantanamo Bay, Cuba, human rights groups are concerned that
the Pentagon is trying to subvert the decision.
a press statement released from its London headquarters Thursday,
Amnesty International charged that the Pentagon's plans to hold
Combatant Status Review Tribunals "show contempt for basic human
rights standards" and are designed to narrow any eventual judicial
review of whether the prisoners can continue to be held as "enemy
Center for Constitutional Rights (CCR), which represents about 60
of the detainees, also charged that the proposed Tribunals violate
minimum standards under U.S. constitutional and international law.
week, the Supreme Court upheld the rule of law over unchecked executive
authority," said Rachel Meeropol, a CCR attorney. "The review procedures
for the detainees set up by the Department of Defense are inadequate
and illegal, and they fail to satisfy the Court's ruling."
Pentagon's plans, which were disclosed to reporters at a background
briefing Wednesday evening, followed last week's 6-3 ruling by the
Court in Rasul v. Bush that the Guantanamo detainees, most
of whom have been held at the base for two years or more, must be
allowed to challenge their status as "enemy combatants" before a
further found that U.S. federal courts had jurisdiction to hear
habeas corpus claims brought by detainees to determine whether or
not their continued detention was legal.
to recent press reports, many of the detainees held at Guantanamo
were low-level Taliban militants or even innocent bystanders who
were rounded up by U.S. or Afghan forces during and after the NovemberDecember
2001 military campaign that ousted the Taliban from power and then
flown to Guantanamo in early 2002.
Pentagon announced Wednesday that it was establishing the new tribunals
before which detainees will be able to challenge their status for
the first time.
the proposed procedures, each detainee will be informed by July
17 that his status as an enemy combatant will be reviewed by a tribunal
and that he has the right to a habeas corpus hearing in federal
will also be provided with a "personal representative" to help them
prepare and present their case to the tribunal which will consist
of three military officers. The personal representative, who must
also be a military officer, will have access to the files on the
detainee's background and will be given 30 days to file a challenge
on his behalf.
will be permitted to attend all proceedings, except those in which
classified information is divulged, to testify and present evidence,
call witnesses "if readily available," and to question witnesses.
The burden of proof will lie with the detainee rather than the government,
however, although the defendant can win his case based on "a preponderance
of the evidence."
procedural issues, such as whether the government can monitor meetings
between the representative and the detainee, or whether the tribunals
will be open to the public or international monitors, have yet to
be decided, according to Pentagon officials.
rights groups are concerned that the tribunals, at which the government
may be able to consider secret or hearsay evidence that the detainee
will not be able to rebut, will be used to create a record that
will then be presented to any federal court that hears a habeas
are concerned that what the administration is planning is to have
the courts restrict their review to the narrow record that emerges
from this Tribunal scheme," said Amnesty. "What it should be doing,
at a minimum, is informing the detainees of their right to full
judicial review in court and facilitating their access to legal
counsel to enable a full and fair process to go ahead."
fact that the detainees will not be given a lawyer for this process,
as well as the fact that the panel will consist entirely of military
officers, also contradicts basic notions of due process, according
to the groups.
to CCR's legal director, the Pentagon's failure to permit detainees
any assistance by legal counsel clearly violates the spirit, if
not the letter, of the Court's ruling in Rasul. "Without
access to a lawyer," he said, "the Supreme Court's decision in Rasul
would be meaningless. The right to habeas corpus has always included
the right to legal assistance."
also assailed a second announcement this week that nine more foreign
detainees have been slated to be tried by a U.S. military commission
as "a member of al-Qaeda or … otherwise involved in terrorism against
the United States." The announcement brought to 15 the total number
of detainees who face military trials that could result in the death
for the commissions, which will also be presided over by military
officers, have been denounced as inadequate and fundamentally unfair
by human rights groups and many specialists in military law, including
a number of active duty military attorneys who have been recruited
to represent detainees.
before military commissions – executive bodies, not independent
or impartial courts – would flout basic standards," Amnesty said
Thursday. "No right of appeal, restrictions on the defense, and
the discriminatory application of fair trial rights are all cause
for concern," it noted, adding that the six named so far have been
held for months in solitary confinement reportedly in windowless
cells and other conditions that could affect their psychological
Lobe is Inter Press Service's correspondent in Washington, DC.
© 2004 One World