Guantanamo review boards called faulty

Panels are reportedly failing to ensure that U.S. detainees receive rightful help

December 31, 2006|By New York Times News Service

GUANTANAMO BAY, Cuba -- At one end of a converted trailer in the U.S. military detention center here, a graying Pakistani businessman sat shackled before a review board of uniformed officers, pleading for his freedom.

The prisoner had seen only a summary of what officials said was a thick dossier of intelligence linking him to al-Qaida. He had not seen his own legal papers since they were taken away in an unrelated investigation. Lawyers are working on his behalf in Washington, London and Pakistan, but here his only assistance came from an Army lieutenant colonel.

As the hearing concluded, the detainee, who cannot be identified publicly under military rules, had one question. He is a citizen of Pakistan, he noted. He was arrested on a business trip to Thailand. On what authority or charges was he even being held?

"That question," a Marine colonel presiding over the panel answered, "is outside the limits of what this board is permitted to consider."

Under a law passed by Congress and signed by President Bush in October, this double-wide trailer might be as close to a courtroom as most Guantanamo prisoners ever get. The law prohibits them from challenging their detention or treatment by writs of habeas corpus in the federal courts. Instead, they may only petition a single federal appeals court to examine whether the review boards followed the military's procedures in reviewing their status as "enemy combatants."

But an examination of the Guantanamo review boards by The New York Times suggests that they have often fallen short, not only as a source of due process for the hundreds of men held there but also as a forum to resolve questions about what the detainees have done and the threats they might pose.

Some limitations have long been evident. The prisoners have no right to a lawyer, or to see evidence, or even to know the identity of their accusers. What has been less visible, however, is what many officials describe as a shortage of information about many detainees.

Behind the hearings that journalists have observed is a system that has at times been as long on government infighting and diplomatic maneuvering as it has been short on hard evidence. The result, current and former officials acknowledged, is that some detainees have been held for years on less-compelling information, while a growing number of others for whom there was thought to be stronger evidence of militant activities have been released under secret arrangements between Washington and their home governments.

Military officials emphasize that the boards are an administrative forum and were never intended to replicate judicial standards of fairness. But they say the hearings offer prisoners a viable opportunity to rebut the government's evidence.

"At the end of the day, it's about giving the detainee the flexibility and freedom to present his case," said Capt. Philip L. Waddingham, a former Navy pilot who oversees the operations of the panels at Guantanamo.

To date, 377 Guantanamo detainees, nearly half of the 773 who have been held there, have been released or transferred to other governments. Of those, about 150 have been repatriated through the review process since mid-2004, officials said.

The administration's push to reduce the Guantanamo population is more evident in another statistic. The final arbiter of prisoner releases, Deputy Defense Secretary Gordon R. England, has overruled the panels' recommendations in more than 15 percent of the 237 cases he has decided this year, officials said. In virtually all of those, the boards had recommended continued detention.

Still, a recent study of the review process found that detainees trying to argue their innocence were routinely denied witnesses they tried to call, even when the witnesses were other prisoners at Guantanamo. Lawyers for the detainees complain that the government has made almost no effort to have the panels consider information they have gathered, and has often blocked their attempts to learn the allegations against their clients.

"We have tried again and again to have a say in the process," said Barbara Olshansky, a lawyer who has coordinated much of the work of the detainee lawyers for the Center for Constitutional Rights. "But we learned pretty early on that these were kangaroo courts."

The detainees appear to have given up on the reviews as a way to win their freedom. In the latest round of annual hearings, which were completed this month, only 18 percent of the prisoners chose to attend.

Several officials who helped establish the review panels said they tried to create mechanisms that would allow detainees to present witnesses and evidence, and allow the panels to gather new information.

But some officials said those ambitions, though sincere, were often undone by the speed of most reviews (often conducted in hours) and the low priority assigned to the gathering of new information on the detainees by intelligence agencies and foreign governments.

This year, three panels at Guantanamo handled up to 14 cases a week, they said. "There are real time constraints and real resource constraints," one retired military officer said. "They usually ended up without anything new, so the boards were just dusting off old files and trying to have a fair and impartial body look at that old information."

Waddingham, the chief of the review office at Guantanamo, said the boards followed the recommendations of military intelligence officials 95 percent of the time. But both he and the overall head of the review program, Frank Sweigart, insisted that the panels were able to get new information when they needed it.

But other current and former officials described a system that was frequently inefficient in collecting information that might determine a prisoner's fate.

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