The New York Times
August 14, 2004
In their first decisions, military tribunals considering the status of the people held at the United States naval base in Guantánamo Bay, Cuba, ruled yesterday that four detainees had properly been designated as enemy combatants who may be held there indefinitely.
The tribunals, which opened for business on July 30 and which resemble courts only in broad outline, will ultimately consider the status of all of the nearly 600 people held at Guantánamo. Their rulings yesterday were more surprising for their speed than their substance.
The government did not release the names or nationalities of the four men involved or even whether they had appeared at their hearings. At a news briefing, Gordon R. England, the secretary of the Navy, said yesterday that 11 of the 21 detainees whose hearings had been held so far decided not to participate.
Lawyers for some of the detainees said the tribunals, known formally as Combatant Status Review Tribunals, did not comply with rulings of the Supreme Court in June requiring that people held as unlawful enemy combatants be able to challenge their detentions in a fair proceeding with due process protections.
"The government is treating a historic loss in the Supreme Court as though it were a suggestion slip," said Eric M. Freedman, a law professor at Hofstra University who has assisted in the representation of some detainees.
Lawyers for the detainees say federal court is the proper forum for adjudicating their rights. They have filed 13 petitions on behalf of 71 detainees before five judges, all in the Federal District Court in Washington, according to the Center for Constitutional Rights, which represents some detainees.
The judges are considering preliminary issues in those cases.
"We're not near the merits," said Jeffrey E. Fogel, the center's legal director, said of the court proceedings. "We're fighting over the right to meet with our clients. You can't litigate these cases if you can't meet with your clients."
Though the government will presumably rely on the Guantánamo tribunals' decisions in court as adequate to justify the detentions, it is not clear whether federal judges will defer to the tribunals.
The Supreme Court gave the lower courts only limited guidance about how those held may challenge their detentions.
Justice Sandra Day O'Connor, writing for the majority in one case, that of Yaser Hamdi, an American captured in Afghanistan and held as an unlawful enemy combatant, said Mr. Hamdi was entitled to "receive notice of the factual basis for his classification, and a fair opportunity to rebut the government's factual assertions before a neutral decision maker," adding that he "unquestionably has the right to access to counsel."
It is possible, Justice O'Connor continued, that constitutionally adequate hearings could be held "by an appropriately authorized and properly constituted military tribunal" that observed due process.
"In the absence of such process, however," she added, "a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved."
Critics of the Guantánamo tribunals say they do not satisfy the Supreme Court's requirements. Detainees, according to the July order establishing the tribunals, are provided with military officers, not lawyers, to act as their "personal representatives"; the representatives may review only "reasonably available information"; the detainee may call only "reasonably available witnesses"; the tribunals are made up of "three neutral commissioned officers of the U.S. Armed Forces," not independent judges, and the rules of evidence do not apply.
"If you look at the rudiments of due process," Professor Freedman said, "these panels don't start to begin to meet it."
The government and lawyers for the detainees also differ on what it means to be an enemy combatant. Justice O'Connor said it was proper to detain someone who was "part of or supporting forces hostile to the United States or coalition partners" in Afghanistan and who "engaged in an armed conflict against the United States" there, at least so long as hostilities in Afghanistan continue.
The tribunals are using a broader definition of enemy combatants. They include those who support Al Qaeda, and they substitute a requirement that the detainee "committed a belligerent act or has directly supported hostilities in aid of enemy armed forces" for Justice O'Connor's requirement of taking up arms against the United States.
At yesterday's news briefing, Mr. England said he expected the tribunals to finish their work in the next several months. More than 150 cases are in progress, he said.
Though the proceedings are moving with lightning speed by civilian judicial standards, Mr. England expressed frustration at the pace.
"It's a harder process than we had earlier anticipated," he said. "That is, it's more time-consuming just to do all of the appropriate translation, interviews with detainees themselves, having the right translators available, being able to translate the information."