- Originally published in the New York Times on August 24, 2004 [here
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GUANTÁNAMO BAY, Cuba, Aug. 22 - Starting Tuesday, the United States military will begin war crimes trials at a secure courtroom here under the eyes of a large international contingent of news organizations and human rights observers. But for the last month, the military has been conducting other tribunals under far more obscure circumstances here to review whether the 585 detainees on this Navy base have been properly deemed unlawful enemy combatants.
Officials said on Monday that these special tribunals had so far completed the process for 14 inmates and that all had been determined to be enemy combatants despite objections and denials from most of them. The proceedings, which have been open to a small number of reporters, can take nearly two hours for each prisoner, said the officials, who spoke on the condition that they not be identified.
Like the prosecutors and panel members in the war crimes tribunals who have also asked to remain anonymous in news accounts, the combatant review officials said they feared retribution from Al Qaeda.
The tribunals to determine if someone is an unlawful enemy combatant were put in place with unusual speed after the Bush administration suffered a defeat in the Supreme Court in June. In the ruling, the court held that the federal judiciary's reach extended to Guantánamo Bay and that prisoners there must receive an opportunity to challenge their detentions before a judge or other "neutral decision maker."
Defense Department officials said they hoped the Combatant Status Review Tribunals, as they are called, might satisfy the court's requirement. A wide array of legal analysts, including some in the government, have said they believe that the combatant review tribunals fall far short of what the court required and that they expect that the issue may be before the federal courts again soon.
Neil R. Sonnett, a Miami lawyer who heads a special American Bar Association panel to monitor the military proceedings at Guantánamo, said on Monday that the combatant review tribunals did not come close to meeting the court's standard.
The military officials who spoke to reporters said that they had held hearings for 31 prisoners to date, 12 of whom refused to take part in what officials said appeared to be a way of registering a protest of their imprisonment and the proceedings.
"The detainee doesn't have to come to the proceeding," an officer said. "There's no arm twisting."
The hearing is conducted by three officers and the detainee is given a "personal representative" who is neither a lawyer nor an advocate. The representative, a military officer, is supposed to pass along to the panel any evidence the detainee wishes to offer as well as any incriminating evidence the detainee has told him.
The detainee may also be denied information about how, where and from whom the information about the accusations supporting the enemy combatant charge originated if officials deem it classified.
Human rights groups as well as many prominent international lawyers have asserted that the United States violated its obligations under the Geneva Conventions for more than two years by refusing up to now to hold individual hearings to determine if the detainees qualified for prisoner-of-war status.
The definition of an unlawful combatant that is used by the tribunal is:
"Any individual who was part of supporting Taliban or Al Qaeda forces or was associated with forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed belligerent acts or directly supported hostilities in aid of enemy armed forces."