The following is my most decidedly non-legal, gut reaction to the proceedings happening at GTMO. There may be legal justifications for them; I can’t authoritatively speak to that.
But I do know that, based on what I’ve read, they just don’t seem fair.
Some of the main problems: Detainees lack access to the prosecution’s evidence. They lack the right to present their own evidence. There is a rebuttable presumption in favor of the Government’s evidence. Detainees lack the right to counsel, and what access they do have to counsel is severely restricted.
Understand where I’m coming from. I’m a professional in the criminal justice system. If we ever held proceedings that denied the procedural protections that are lacking in the CSRT hearings, everyone would agree that those proceedings would be deemed completely unfair.
Now, look. I understand that the folks at GTMO are not in the same posture as an American citizen charged with a crime. And granted full habeas rights to prisoners of war would present huge potential difficulties, as Justice Scalia repeatedly pointed out during the argument.
But the people at Gitmo are not all people who were picked up on the battlefield, fighting against the U.S.
For example, the petitioners in the Boumediene case allege — and the Government does not dispute — that they never waged war on the United States. According to their brief, they were arrested in Bosnia under pressure from the U.S. Government, which contended that they had conspired to attack the U.S. Embassy in Sarajevo. After an international investigation (conducted with the aid of the U.S. Embassy) failed to substantiate the charges, a tribunal established under the Dayton Peace Agreement ordered them released. They were on the verge of being released when they were snatched by Bosnian police (again acting under pressure from the U.S.) and transferred to U.S. military personnel, who took them to Guantanamo in January 2002.
They’ve been held there ever since — for almost six years.
I don’t know what evidence the U.S. has against them. But neither do they:
Most of the evidence the government presented to the CSRT panel was classified and, therefore, concealed from Petitioners under CSRT regulations. Pet. App. 39a, 82a. The following colloquy from the CSRT hearing of Petitioner Ait Idir (charged with “associat[ing] with” an unnamed but “known al Qaeda operative” (CAJA 493)) is illustrative (Pet. App. 83a-84a):
Detainee: Give me his name.
Tribunal President: I do not know.
Detainee: How can I respond to this?
Tribunal President: Did you know of anybody that was a member of Al Qaida?
Detainee: No, no.
Tribunal President: I’m sorry, what was your response?
Tribunal President: No?
Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.
Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.
Detainee: Why? Because these are accusations that I can’t even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don’t have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of Al Qaida. To tell me that I thought, I’ll just tell you that I did not. I don’t have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.
Is it any wonder that Seth Waxman described these tribunals yesterday as “Kafkaesque”? It puts one in mind of Josef K’s statement in “The Trial”:
This question of yours, Sir, about my being a house painter — or rather, not a question, you simply made a statement — is typical of the whole character of this trial that is being foisted on me. . . . I do not say that your procedure is contemptible, but I should like to present that epithet to you for your private consumption.
This parallel occurred to me on my own — which is not saying much; it’s pretty obvious — but after writing it I did a quick Google search, and was not surprised to learn that I was not the first person to make the connection between the above CSRT passage and “The Trial.”
What should be done with these people? Should they be given all the rights U.S. citizens charged with crimes in the U.S. have? I’m not sure about that.
But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.
There has to be a better way.