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The Nation

Guantanamo Bay Justice: 3 Hours Behind Closed Doors

November 07, 2004|Richard A. Serrano | Times Staff Writer

WASHINGTON — On hardback chairs, their hands shackled and the chains bolted to the floor, the detainees are given this one chance to prove their innocence. Some have already been at the U.S. prison camp in Cuba for nearly three years, and some are visibly fearful in this small room crowded with military authorities. Others are angry and defiant.

Musab Omar Ali Al Mudwani, an alleged Al Qaeda fighter trained in Afghanistan, was almost begging, records show. Please, he told the military officials, "look at the evidence with fairness."

Saeed Ahmed Al-Sarim, captured in the fighting around Tora Bora, asked repeatedly why the military justice system was "closed and silenced." He asked, "Are there going to be lawyers? Are we going to be able to contact our families?" Then he sighed in resignation. "Nothing is going to change," he said.

And Ali Husayn Abdullah Al Tays, who once stayed at an Afghan safe house frequented by Osama bin Laden, lashed out at his captors. "Why are you Americans asking me about this?" he shouted. "Why is it your business? Tell me what business it is of the Americans."

In the last three months military officials at the U.S. naval base at Guantanamo Bay, home to the prison known as Camp Delta, have been conducting three-hour Combatant Status Review Tribunals. The tribunals began July 30 after the U.S. Supreme Court ruled that detainees could not be held indefinitely and that they had a right to some form of legal process.

Each prisoner now gets a hearing, one chance to convince the American authorities that they should not remain in custody as enemy combatants -- the classification assigned to them when they were originally scooped off the battlefields of Central Asia.

"We think this is a professional process. It's very rigorous. It's fair," said Navy Capt. Beci Brenton, a Pentagon spokeswoman. "We take extra steps to make sure the detainees understand the process, and they are given a good opportunity to speak for themselves."

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The Process Debated

Critics are unconvinced. They note that only one of the 104 tribunal verdicts has resulted in a prisoner going home. They also say that the hearings are a mere formality, forced upon the Pentagon, and that they mock the U.S. justice system because detainees are not allowed attorneys and rarely can put on evidence or offer the testimony of witnesses in their defense.

"The process is basically a sham," said Washington lawyer Thomas Wilner, who has been working to free 12 Kuwaiti detainees.

Eugene R. Fidell, president of the Washington-based National Institute of Military Justice, said the tribunals should have been held in Afghanistan and Pakistan when the detainees were first captured, and evidence and witnesses were still fresh.

"These are not a meaningful substitute for the competent tribunals required under the Geneva Conventions," he said.

And Fidell scoffed that all but one verdict has gone against the detainees. "That's a great batting average, isn't it? They're pitching a nearly perfect game."

In recent weeks documents have begun surfacing in U.S. District Court in Washington, and other Pentagon materials have been obtained by The Times, that for the first time show how justice is being meted out in those small hearing rooms in Cuba, where about 550 people are detained.

The Times was able to review the cases of 47 detainees, along with transcripts of the tribunals, written statements from the prisoners and letters of support from family members insisting their loved ones are innocent. Access to the actual hearings was severely limited by the Pentagon; reporters did not have free access to the hearing rooms and could not learn either the name of the detainee or the full charges against him.

As a result, the hearings have received almost no news coverage.

Even critics concede that the tribunals must grapple with a difficult issue: At least some of the Guantanamo detainees are probably innocent, but it also seems likely that some remain potential threats to Americans. Before the tribunals began, some detainees who were released took up arms against U.S. forces again.

What critics charge, however, is that the tribunal system as it is now being implemented does not give detainees adequate resources to defend themselves.

In the hearings, the government almost always presents evidence to suggest the detainees had direct ties to Al Qaeda, that they were trained in terrorist camps in Afghanistan and that many were captured during the war to defeat the Taliban waged after the Sept. 11 terrorist attacks in America.

One man was deemed a close associate of a known suicide bomber. Another was captured with the cellphone number belonging to Abu Zubeida, an Al Qaeda operations chief and top aide to Bin Laden.

Some are listed as Bin Laden bodyguards. One reportedly was with the Al Qaeda leader shortly before he disappeared into the caves of Tora Bora.

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