A Chance to Defend Themselves

Military guards escort a detainee at Guantanamo.
Military guards escort a detainee at Guantanamo. (By Brennan Linsley -- Associated Press)
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By Thomas B. Wilner
Sunday, December 30, 2007

The Supreme Court heard arguments this month in cases brought by detainees held at Guantanamo Bay. Media reports noted the complicated legal issues involved, such as whether the Constitution extends beyond sovereign U.S. territory, whether foreigners are entitled to constitutional protections and whether habeas corpus would have been available in a place like Guantanamo some 250 years ago under British rule.

Those are all interesting legal questions. But what is at stake here is far less complicated and more fundamental -- the question of whether our government can throw people in prison without giving them a fair chance to defend themselves.

Throughout the civilized world, the right not to be imprisoned without a fair hearing -- one that provides notice of the charges and the opportunity to rebut them before a neutral decision maker -- is fundamental. It is the hallmark of the rule of law.

More than 300 prisoners remain at Guantanamo. Most have been there almost six years. We now know that the great majority were not captured on any battlefield. They were not even captured by U.S. forces. Rather, as the National Journal reported last year after an exhaustive study into government records, many were simply "innocent, wrongly seized noncombatants" who were "handed over by reward-seeking Pakistanis and Afghan warlords" in exchange for bounties.

All these prisoners have asked for is a fair hearing, one in which they have the chance to learn the charges against them and to rebut the accusations before a neutral decision maker. The Supreme Court ruled 3 1/2 years ago that they had that right under the statute giving any prisoner in government custody the right to a fair hearing before a federal court.

Just days after that 2004 decision, however, the Bush administration put in place an administrative process -- known as CSRT -- under which panels of junior military officers would review the decisions already made by their military superiors that the prisoners were all properly held as "enemy combatants." That process was a sham. The detainees were not allowed lawyers, nor were they allowed to see much of the government's evidence, because the government deemed it "classified." They could not confront their accusers, question their reliability, or question whether the accusations resulted from torture and coercion. They were not allowed to present evidence of their own unless the CSRT panels found that it was "reasonably available," something the panels rarely did.

The CSRTs denied every request made by a detainee for a witness who was not already detained in Guantanamo. They denied three-quarters of the requests for witnesses who were there. In addition, the CSRT rules established a presumption in favor of all the government's evidence, including the evidence kept secret from the detainees. Predictably, in more than 90 percent of the cases the CSRT panels simply confirmed the decisions made by the superiors that the detainees were enemy combatants. In cases where the panels concluded that a detainee was not an enemy combatant, new panels were often convened to conclude that he was.

To make matters worse, the administration then persuaded Congress to take away the detainees' rights to a hearing in federal court. Under a new law, detainees were able to obtain only a limited determination from the U.S. Court of Appeals for the D.C. Circuit of whether the CSRT panels had followed their own rules -- that is, the same rules that deprived detainees of counsel and of the rights to know the accusations against them, to confront their accusers and to present evidence establishing their innocence. (The statute also authorizes the D.C. Circuit to consider whether the CSRT rules are consistent with the Constitution "to the extent" that the Constitution applies, but since the appeals court already decided that the Constitution does not apply, that inquiry is off the table.) The administration asked the Supreme Court to approve that limited review as adequate or at least to delay its decision until the lower courts further consider the issue.

Significantly, the administration does not contend that this process provides the detainees with anything approaching a fair hearing.

Instead, for complicated legal reasons, it contends that these foreign prisoners held outside the United States may be denied a fair hearing because the administration has labeled them "enemy combatants."

What all this means is that as they approach the end of their sixth year of imprisonment, these men have been denied even one fair hearing.

If we observed this conduct by any other country, we would be appalled. We would say, rightly, that you can't jail people without giving them a chance to defend themselves. There is and can be no acceptable legal excuse or explanation for denying people a fair hearing.

That would be so there, and it is so here.

The writer was counsel of record for Guantanamo detainees in the cases decided in their favor by the Supreme Court in June 2004 and is counsel of record for Guantanamo detainees in the cases pending before the Supreme Court.


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