Hardly just

Despite appearances to the contrary, due process remains absent from Guantanamo Bay, reports Anayat Durrani

---

Thirteen hearings have been held at Guantanamo Bay, Cuba, since the American military convened "Combatant Status Review Tribunals" on 30 July. The tribunals were set up in response to a United States Supreme Court ruling in June that prisoners have a right to contest their detention in US courts. While the US military has moved ahead with its hearings, critics have blasted the process calling it unfair.

The tribunals established are to examine the cases of hundreds of prisoners accused of having links to the ousted Taliban regime of Afghanistan or the Al-Qaeda network. The process is to determine whether some 585 detainees from more than 40 countries incarcerated at the US prison camp since January 2002 may continue to be held as "enemy combatants" or ought to be freed. The process is expected to take weeks, possibly months.

A panel of three military officers sits on each hearing and every detainee is assigned an officer to represent him at the administrative proceeding. Already six detainees -- three Yemenis, one Saudi, one Moroccan and an Iranian -- have refused to appear.

Human rights groups and international law experts have dismissed the tribunals as "extra-judicial". They say detainees are not allowed lawyers and that as members of the military the three military officers on each tribunal cannot be considered impartial. "These so-called tribunals are a masquerade of justice designed to undermine the right to an independent judicial review recognised by the US Supreme Court," Reed Brody, a veteran human rights activist and special counsel with Human Rights Watch, told Al-Ahram Weekly.

"Given that the military has repeatedly asserted that these detainees are enemy combatants, one imagines that there would be pressure on the three officers sitting on the panel not to conclude otherwise," Brody added. "The officer assigned to represent the detainee is not a lawyer and, more importantly, is not bound by the confidentiality of lawyer- client communication which is the key to earning the trust of the client and is the hallmark of zealous advocacy."

The military says panel members are neutral and that the tribunal process will be fair. The US military has said that it has recruited the best military legal and administrative professionals to review detainees' cases.

Navy Secretary Gordon England, whose department runs the camp, has described the tribunal process as "open" and "fair". However, critics argue that the military is not carrying out due process of law.

"Well-established standards of due process are not being followed. This is simply a perfunctory process designed to provide minimal compliance," Marjorie Cohn, executive vice president of the National Lawyers Guild told the Weekly. "Review by military officers presents a conflict of interest since it is the military that is detaining these prisoners. This does not comply with due process."

For over two years, human rights advocates have sharply criticised the Bush administration for failing to give the detainees at Guantanamo prisoner of war (POW) status. US officials did not grant detainees POW status saying they broke the laws of war and therefore were not allowed hearings to rebut the evidence against them. Granting POW status would have given detainees more legal protections, in particular protection from abusive interrogations that have received worldwide attention since the Abu Ghraib prison scandal in Iraq.

"The process now created might have been sufficient had each individual had an opportunity to plead their case when they were captured on the battlefield over two years ago," Avi Cover, senior associate at Human Rights First, remarked to the Weekly. "The entire tribunal is now stacked against them, from a presumption that a person held is an enemy combatant rather than a presumption of a prisoner of war status, to the fact that two years removed from their capture and thousands of miles away from their homes, it is next to impossible for them to gain access to evidence that might exonerate them."

Once a prisoner's case is presented to the tribunal, the status will be decided immediately. Though initial decisions have not been announced, officials say they may do so later this month. If "enemy combatant status" is deemed valid, detainees can still appear before "Administrative Review Boards" to be convened later this year. These will determine if the inmates continue to pose "a threat" to the US and the world.

"Military officers have in US history represented people against the government or presided over tribunals and been able to remain impartial," explained Cover, "but given the structure of the combatant status tribunals it is harder to imagine neutrality being achieved here."

The military has not allowed reporters to release the names of detainees or tribunal members. Parts of the hearings in which classified information has been discussed have been closed to the public. However, journalists have been able to review hearings. Journalists observed the first hearings last Thursday when two Afghan detainees pleaded for release arguing that although they were with Taliban forces they never fought against American soldiers.

The military has invited the International Committee of the Red Cross to observe the tribunals. The Red Cross has been the only group allowed access to the detainees since 2002 and is considering the offer.

The tribunals are separate from military commissions that will try four detainees on various charges. Three of the men are alleged bodyguards of Al-Qaeda leader Osama Bin Laden and are charged with conspiring to attack civilians and commit terrorism. The fourth is an Australian citizen accused of conspiring to commit war crimes. Pre-trial hearings are slated to begin on 23 August.