Guantánamo: A Legal Black Hole

The pre-trial hearings in the Hicks case came to an end today, so this may be my last dispatch from Guantánamo. Next week, the commission will hear motions in the case of Salim Ahmed Hamdan, a 34-year old Yemeni who is accused of having served as a bodyguard and driver to Osama bin Laden. Trial in the Hicks case is scheduled to begin in March.

Over the past few days, I've written mainly about the legal process (or lack of it) afforded to the handful of prisoners who, like Hicks, have been charged with war crimes. These are the detainees who'll be tried before military commissions. I want to use this last dispatch to talk about the hundreds of prisoners here who have not been charged with any crime at all. There are 550 or so prisoners held here at Guantánamo right now; only 15 of these have been designated by the President as eligible for trial before the commission, and of these only four have actually been charged. The overwhelming majority of the prisoners held here at Guantánamo have not been charged with any crime or even designated as eligible to be tried. The Defense Department has argued that they can nonetheless be imprisoned indefinitely - perhaps for life - because they're "enemy combatants."

Let's put aside the question of whether the government is legally entitled to detain enemy combatants indefinitely. How do we know that the people locked up here are in fact enemy combatants? Senior government officials seem to harbor few doubts. The Secretary of Defense has referred to the Guantánamo prisoners as "hard-core, well-trained terrorists" and "among the most dangerous, best-trained, vicious killers on the face of the earth." Vice President Cheney has referred to them as "the worst of a very bad lot . . . devoted to killing millions of Americans."

But senior officials said similar things, remember, of the hundreds of immigrants who were detained in the United States after September 2001. None of those people were convicted of a terrorism-related offense. In fact, most were never charged with any crime at all. Notably, one of the military officials in charge of detention camps at Guantánamo recently acknowledged that many of the prisoners pose little threat and have provided little intelligence value. "Most of these guys weren't fighting. They were running," he said.

So how do we know that someone whom the government calls an "enemy combatant" is in fact an enemy combatant? Last year, the Supreme Court held in Hamdi v. Rumsfeld that the government may not detain a person as an enemy combatant unless a neutral tribunal determines - after providing due process - that the person is actually what the government says he is. After that ruling, the government contrived something called the Combatant Status Review Tribunal (CSRT) to make such determinations.

Predictably, the CSRT process does not provide anything like due process. Reversing the presumption of innocence, the tribunal starts by presuming that the prisoner is in fact an enemy combatant, and it's up to the prisoner to prove that he's not. Rebutting a presumption of guilt would be difficult in any context but it is made doubly so here because the prisoner is not given access to all of the evidence and is not provided a lawyer. The prisoner is provided something called a "personal representative," but the personal representative does not have legal training and does not (and cannot) assure confidentiality. Thus, a prisoner's conversations with his representative may be used against him - not only at the CSRT but also in any subsequent criminal proceeding.

The CSRT process has worked exactly as it was intended to. While the CSRT has reviewed the cases of some two hundred prisoners, it has ordered the release of only one. Many prisoners are now refusing to participate in the process at all.

Let me close by saying something more general about what I've seen here at Guantánamo over the last few days. Many of us hoped that the Supreme Court's decisions in Hamdi, Padilla, and Rasul would lead to the adoption of policies here at Guantánamo more consistent with the constitution and with international standards of justice. It's clear that this hasn't happened. Both the military commissions and the CSRTs are fundamentally lawless; they are proceedings designed not to provide fair process but rather to rubber stamp essentially political decisions. There is no doubt that the Supreme Court's rulings were critically important, but Guantánamo remains a legal black hole. Unfortunately, it's clear that there's a lot more work to do.