Breaking and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.


Thank you for sharing!

Your article was successfully shared with the contacts you provided.
GUANT�NAMO BAY, CUBA — The Kuwaiti detainee appearing before a military panel at the U.S. naval base seemed eager to explain himself. As he denied taking up arms against the United States as a member of the Taliban in Afghanistan, in all likelihood the 27-year-old prisoner — cuffed at the wrists and ankles and shackled to a bolt in the floor — had no idea that he had recently won a major victory at the U.S. Supreme Court. And yet the detainee was taking part in a process, known as a combatant status review tribunal, designed by the administration in direct response to that June 28 Supreme Court ruling, which asserted the authority of federal courts to hear from prisoners challenging their detentions at Guant�namo Bay. In an attempt to take control before a federal judge did, the government created the tribunals to establish the justification for each prisoner’s detention. Unlike the military commission proceedings held in late August for prisoners who have been formally charged with war crimes, the status review tribunals look only at the narrow question of whether a detainee is an enemy combatant and therefore can be legally held. For this detainee, one of 12 Kuwaitis whose habeas claims were taken up by the Supreme Court in the cases of Rasul v. Bush and Al-Odah v. United States, this Aug. 27 hearing before three military officers was his first chance to contest his nearly three-year detention by the U.S. government. Shearman & Sterling partner Thomas Wilner, the lead lawyer for the 12 Kuwaitis, says the tribunal “doesn’t even come close” to satisfying his clients’ rights. “What’s required under the Supreme Court decision is a fair chance for these people to confront the evidence against them before a neutral decision-maker and adequately represented by counsel,” Wilner says. “I think the whole thing is sort of a joke.” The Kuwaiti detainee facing his tribunal did not appear to be taking the proceeding at all lightly. When his turn to speak arrived, the orange-clad prisoner — whose identity, Pentagon rules stipulate, cannot be disclosed — labored to make himself understood through the Arabic interpreter sitting to his left. “I will answer any questions,” he said, breaking into a smile. “And you will know I speak the truth.” TO THE LIMIT Before the end of the year, the Pentagon expects to conduct 585 proceedings — one for every detainee held at Guant�namo Bay. In each case, the panel will determine, based on a preponderance of evidence, whether the detainee has been properly classified as an enemy combatant. That is, was the prisoner fighting against U.S. or allied forces in support of the Taliban, al Qaeda, or an associated group? It’s a straightforward assessment, one in which extenuating circumstances are largely irrelevant. Under the Pentagon definition, it does not matter, for instance, if an individual was forced to take up arms against his will, or if, as the Kuwaiti detainee claimed, he never intended to fight in the first place. The presumption is in favor of the government. “Everyone here is considered to be an enemy combatant until found not to be,” explained the officer in charge of the tribunals, an Air Force colonel who spoke on the condition of anonymity. The specter of grave national security interests hangs over the status review tribunals. Each hearing takes place in two sessions — an unclassified portion open to the detainee and to the media, and a classified portion held in secret, without the detainee present. The Pentagon assigns each detainee a military officer to explain the review process, answer questions, and help secure any witnesses a detainee requests to call. The officers, called personal representatives, have no legal training and are required to disclose inculpatory information given to them by the detainees. Detainees choose whether they want to attend the hearing and, if so, whether they wish to testify. They are not informed that they face a presumption of guilt. Michael Ratner, president of the Center for Constitutional Rights, calls the process “nasty and dishonest.” “These detainees are essentially drowning in the middle of an ocean, and the military comes to them and offers them a life jacket,” says Ratner, whose group currently represents more than 50 detainees. “The guy grabs it because he thinks he’s going to be saved. But actually, it’s just an interrogation by another name.” Following a ruling from the panel, a record of the hearing is sent to the Pentagon for review and approval by Navy Rear Adm. James McGarrah. McGarrah cannot reverse any decision, but he can send it back for a second look. As of Aug. 31, the military had completed proceedings for 44 detainees. Of those, McGarrah had finalized 19 determinations. All 19 were found to be enemy combatants. No one has been released. A CHANCE TO SPEAK The Aug. 27 tribunal for the Kuwaiti prisoner began at 2 p.m. EST in a makeshift hearing room on the perimeter of Camp Delta on the U.S. naval base in Guant�namo, where the majority of detainees are incarcerated. Though the trailer that houses the Office of Administrative Review for Detained Enemy Combatants, or OARDEC, is not technically within the prison camp, observers must pass through five layers of security to reach it. Three 12-foot-by-20-foot hearing rooms are currently outfitted to hold tribunals. In each, panel members sit on a raised platform, meant to give the room a hint of formality. Behind the panel, a one-way window allows military observers to watch proceedings unseen. According to Pentagon rules, tribunal participants cannot be identified by their names, only by military service and rank. For this hearing, 11 people were present, including three journalists, a translator, an Air Force major acting as the detainee’s personal representative, and an Air Force captain who presented all evidence related to the detainee — both exculpatory and inculpatory. “The detainee is associated with the Taliban. He has admitted to affiliating with the Taliban. He has admitted to traveling to Afghanistan to fight with the Taliban,” the Air Force captain recited. “He also received weapons training in hand grenades and a Kalashnikov rifle. In Afghanistan, the detainee engaged in hostilities with U.S. and coalition forces.” The government specifically accused the Kuwaiti detainee of fighting against the Northern Alliance on two separate battle lines and of being present at the notorious prison uprising near Mazar-e-Sharif in November 2001. Initially, the detainee, a slight, bearded man, seemed nervous and rocked in his seat as he began speaking. He relaxed when his personal representative, sitting to his right, stepped in to cue him with specific questions. The detainee disputed any alliance with the Taliban and claimed to have traveled to Afghanistan to engage in a religious practice called ribat, which he described as “waiting.” “Ribat is the opposite of jihad,” the detainee told the panel. “Ribat is defending the line, whereas a jihadist is actually attacking. . . . You go there to earn wages, to learn how to meditate, to wait. You learn patience. Your purpose is not to fight.” The detainee did concede that he carried weapons. “The Kalashnikov and hand grenades were standard issue to anyone standing on the front line,” he said. According to the detainee’s testimony, he travelled to Northern Afghanistan nearly a year before the terrorist attacks of Sept. 11, 2001. When the U.S. bombing campaign began, he fled to the Taliban-controlled city of Konduz, where he hoped to find a way back to Kuwait. “When the bombings started, we realized it had gotten really serious, and everyone wanted to leave. It was over,” the detainee told the panel. In November 2001, Konduz fell to the Northern Alliance. According to his testimony, the detainee was among those taken by truck to Qala Jangi, a 19th century fortress used as a prison by the Northern Alliance. Within hours the prison erupted into a bloody battleground. The detainee said he was not aware of any plans among prisoners to revolt, and fled from the prison when violence broke out. He was injured as he tried to make his way to safety. The detainee, who was wearing sandals, did not describe the nature of his injuries, but he was missing a toe and had heavy scarring around one ankle. FURTHER REVIEW The Supreme Court’s decision in the Guant�namo habeas cases remains silent on the exact nature of the process the government owes enemy combatants. In crafting the combatant status review tribunals, Bush administration lawyers looked instead to language in a separate decision handed down in the case of Yaser Esam Hamdi, an American citizen captured in Afghanistan. In a plurality opinion in Hamdi’s case, Justice Sandra Day O’Connor asserted that a U.S. citizen held as an enemy combatant must be given meaningful opportunity to contest the factual basis for his detention before a neutral decision-maker. She later suggested that the legal process due Hamdi could possibly be met by “an appropriately authorized and properly constituted military tribunal.” Assuming that noncitizens held as military prisoners would not be entitled to any more protection than a U.S. citizen, administration lawyers designed the review tribunals to meet the parameters set out by O’Connor in Hamdi v. Rumsfeld. When the combatant status review process was unveiled in July, a top Justice Department official said it would provide detainees with “any form of process that they have a right to” and position the government to “say we fully satisfied our legal obligation.” Wilner of Shearman & Sterling says he is dismayed that his client, whom he has never met, was brought before a tribunal without first being permitted to consult a lawyer. Since the Supreme Court’s ruling permitting federal courts to hear habeas petitions from those held at Guant�namo Bay, Wilner and other attorneys representing detainees have been pushing for access to their clients. Government lawyers maintain that the Supreme Court decision does not entitle detainees to legal counsel. At the conclusion of the unclassified portion of the Aug. 27 tribunal, which lasted roughly 75 minutes, the Kuwaiti detainee asked just one question: “When will I learn the results of the hearing?” In the event a detainee is found not to be an enemy combatant, the Pentagon and the State Department would coordinate his release back to his home country. Wilner says he will not be holding his breath. “It seems like a huge charade,” he says.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.