Category Archives: Guantanamo

AP reports that the legal sparring over the merits of the Guantanamo detentions is heating up:

A federal judge ordered the Bush administration on Thursday to explain its detention of a Libyan at a U.S. military prison in Cuba by next week, the first such demand since the Supreme Court ruled in June that foreign detainees can use American courts to challenge their confinement.

U.S. District Judge Reggie B. Walton set a deadline of next Tuesday for the government to lay out why he should not order the release of Salim Gherebi, who is among nearly 600 men from about 40 countries who have been held with little or no contact with the outside for two years or more.

…

A case filed on Gherebi's behalf was already pending at the Supreme Court when the justices decided 6-3 to allow U.S. judges to hear detainee lawsuits.

The high court sent the case back to California, where it was filed, and the San Francisco-based 9th U.S. Circuit Court of Appeals transferred it to Walton's court earlier this month.

In a brief order, Walton said that if government lawyers cannot meet the Tuesday night deadline or are concerned about “revealing classified information that might jeopardize national security,” they can request more time. The judge said he must be told by Friday if the government will seek to have the case dismissed.

Walton said military officers should not try to persuade Gherebi, who was captured in Afghanistan, to waive his legal rights in the meantime.

… Walton was named to the bench by President Bush.

A case to watch!

Talkleft spots a Wall St. Journal article reporting that Guantanamo Hearings May Begin Today:

Under the procedure, which went under a dry run yesterday, with military personnel playing the part of detainees, prisoners will appear before a three-man panel of senior officers. That panel will examine the dossiers assembled after hours of interrogations, give the detainees a chance to speak and then determine whether they should be set free. The advocates will be U.S. government employees, who, unlike lawyers, will not be honor-bound to serve the best interests of their client.

…

Under the current plan, three separate tribunals will hear 72 cases a week so each detainee can get a hearing within four months. Unlike traditional civilian justice, the government will have one big advantage: The burden of proving innocence will rest with the detainees. Detainees won't get lawyers, but “personal representatives,” military officials without any legal background, who will offer advice to prisoners, lay out unclassified portions of their dossiers and help inmates make their case to the tribunal.

It's hard to tell without more direct information, but from the sound of it these status hearings may well suffice to meet our Geneva Convention obligations. Article 5 of the Third Geneva Convention states, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” then “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. “

So the decision to hold the hearings, however belatedly, is actually a positive step, despite their being so limited and despite their being held in secret. Furthermore, in my opinion, attacks on this procedure as one-sided or unfair or lacking in due process miss the point: none of those 'defects' are actually problems in a Geneva Convention status hearing. They're just par for the course. (As noted below, these same defects become serious issues if (and only if) anyone tries to argue that the fact of the status hearing obviates the need for a full habeas hearing if the tribunal classifies the detainee as an unperson 'enemy combatant'.)

The hearings could, I imagine, produce one of three outcomes in each case: 1) “Detainee is freed,” 2) “Detainee is a POW,” 3) “Other” — a category that will be primarily what the administration calls enemy combatants, but might include a finding that a person is, say, a civilian suspected of criminal activity.

The first two categories are easy. We know how to free people, we purport to know how to treat POWs, and despite various bits of speculation by the right wing, I for one do not believe that a recognized POW will get any traction in our courts, even via habeas, unless he alleges something on the order of torture (and maybe not even then until after the war is over).

The legally interesting category is the third one.

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It came via “Yuks,” a jokes mailing list run by Gene Spafford, so at first I didn't think it was for real:

It appears that the US navy spokesman put up to answer journalists' questions about the US detention centre at Guantanamo Bay, Cuba, is one Lieutenant Mike Kafka. As the article on The Register (www.theregister.co.uk) observes: “Yes, you're reading that correctly. A man named Kafka has been deployed to field questions about a prison where the criminals are only vaguely charged with crimes, can't speak to lawyers and likely will never get out.” Any resemblance this reality bears to an actual fiction is entirely coincidental.

But it's true. (The item is worth reading by the way for its account of how Photoshop got deployed at Guantanamo.)

I missed this one when it came out last week (alterted via Ken Sain):

Swede reignites Guantanamo Bay torture fears. In his first interviews to the Swedish media, Mehdi Ghezali said US interrogators subjected him to a string of abuses, including being shackled for hours, sleep deprivation, no contact with the outside world, being forced to endure cold temperatures for up to 14 hours at a time and attempts to humiliate him sexually.

“There was always psychological torture, but the last month they used more physical torture,” Mr Ghezali told Swedish Radio.

His claims are in line with accounts from other Guantanamo detainees who have been released.
…

Swedish Radio's correspondent described Mr Ghezali as withdrawn, solemn and tired.

A devout Muslim, Mr Ghezali insisted he was not involved in terrorist activities.

“I don't think they would have released me if I were,” he told the radio.

He said he was arrested in December 2001 in Pakistan and turned over to US authorities who shipped him to Guantanamo in January 2002.

He claimed he was visiting a friend in Pakistan when local villagers captured him and sold him to Pakistani police, who then handed him over to the US.

…

Mr Ghezali said he was interrogated daily by US guards, but stopped answering their questions after the first six months. He said he remained silent for the next two years.

One time, the guards brought an American woman into his cell to try to get him to have sex with her.

“They tried to make me lose my faith. Maybe they wanted to use it against me so I would cooperate,” he said.

The only physical traces Mr Ghezali has from his detention are teeth in poor condition and the loss of feeling in part of his left foot after an ankle chain was clamped too tight.

There is indeed a striking consistency to the stories released detainees are telling. I suppose someone will suggest some sort of common plan or purpose on their part, but given the extent to which the detainees are kept isolated while being held that seems very unlikely.

An almost amusing footnote to this story is the Swedish public's annoyed reaction to the $67,425 cost of flying Mehdi-Muhammed Ghezali home.

Apparently, the US required a special flight direct from Gitmo, rather than taking him to, say, Miami and letting him board a commercial flight. (I imagine one reason for this is to prevent any detainee from setting foot in the US, with all the jurisdictional consequences that implies.)

The LA Times runs a story entitled Pentagon Reportedly Aimed to Hold Detainees in Secret which reports that before the Supreme Court ruled in the Guantanamo decision the DoD held a meeting in which it mapped out a plan to create a special class of 'ghost' detainees whom it would not acknowledge holding. The purpose of this exercise was, the LA Times tells us, to undermine the Pentagon's already rather ungenerous policy of limited one-sided annual reviews of the status of detainees.

Pentagon officials tentatively agreed during a high-level meeting last month to deny that process to some detainees and to keep their existence secret “for intelligence reasons,” senior defense officials said Thursday.

Under the proposal, some prisoners would in effect be kept off public records and away from the scrutiny of lawyers and judges.

…

Two senior defense officials said they believed that the prisoners who would be denied the reviews might be held by the CIA, rather than the Defense Department.

A U.S. intelligence official said Thursday that the CIA was not holding any detainees at Guantanamo, but added that the annual reviews would not apply to CIA prisoners elsewhere.

Some bloggers are getting very excited about this but I think for the wrong reasons.

It's clear from news reports that the DoD never expected to lose the Guantanamo case. Having lost it, though, I see nothing in this report of pre-decision meetings to suggest a current policy of undermining the Court's decision. It's true that the Pentagon is now “going ahead with the status hearings:. It's also true that the Supreme Court's decision doesn't say in so many words that someone spirited away from Guantanamo to a place where the Court's writ might not run necessarily keeps his right to sue, but that is the almost inevitable consequence of the Padilla decision, especially if one looks at Justice Kennedy's concurrence, which I think will control on this issue.

So, until I hear otherwise, I am going to trust the military on this one, and indeed the DoD's official line is that “everybody under DOD custody will be subject … to the annual review process that has been outlined previously.”

Of course the key words are “under DOD custody”. The great unanswered question remains what rights — if any — the people held by the CIA will have. (Consider how bad the position is of the ones they admit to having, then imagine what happens to the ones held in secret).

The Guantanamo situation remains very troubling, but the Supreme Court has ensured that what might have been a stop on an American Gulag will — soon, I hope — become instead a regime whose harshness is cabined by legality. There is currently little reason to feel sanguine that the same can be said about the interrogation/detention centers run abroad by the CIA.

At last. The US will hold Status Hearings for all the detainees in Guantanamo. Article 5 of the Third Geneva Convention requires such hearings, stating, “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy,” then “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.”

In other words, enemy fighters should be treated as POWs — not civilian law-breakers, much less “enemy combatants” — until they have had an initial hearing which can be and usually is before a military tribunal.

We were supposed to do that two years ago, but at last Pentagon Sets Hearings for 595 Detainees.

Note that these hearings are completely separate from the habeas hearings the Supreme Court has said must be held. But to the extent that some detainees are released, or classified as POWs, the number of habeas hearings may shrink.

Unlike some right-wing doomsayers I think it unlikely that POWs have a claim to habeas relief during the duration of the conflict. But to the extent that they can claim the war is over now that we've handed over sovereignty, they too might have a claim that could be heard. (But it would lose.)