Rights Groups Accuse Pentagon of Subverting Court Ruling on Guantanamo Detainees

by Jim Lobe

While 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.

In 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 combatants."

The 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.

"Last 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."

The 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 neutral tribunal.

It 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.

According 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 November–December 2001 military campaign that ousted the Taliban from power and then flown to Guantanamo in early 2002.

The Pentagon announced Wednesday that it was establishing the new tribunals before which detainees will be able to challenge their status for the first time.

Under 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 court.

He 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.

Detainees 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."

Other 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.

But 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 corpus petition.

"We 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."

The 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.

According 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."

Amnesty 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 penalty.

Procedures 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.

"Trials 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 health.

July 10, 2004

Jim Lobe is Inter Press Service's correspondent in Washington, DC.

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