Guantanamo Detainees Make Their Case in Mock Legal Proceedings

• Originally published in The New York Times on March 24, 2005 Copyright 2005 The New York Times Company

By NEIL A. LEWIS

A 30-year-old Sudanese prisoner listened with barely concealed anger on Tuesday and slouched deeper into his seat as an Air Force officer told a military panel why the man remained a threat to the United States and should not be released from the prison camp here.

The slight and scraggly bearded Sudanese, hands cuffed and feet shackled to the floor, is among more than 500 prisoners from the fighting in Afghanistan who remain here and whose cases are being reviewed under the latest military legal proceeding intended to reduce Guantanamo's prison population and meet the terms of a Supreme Court decision allowing them to challenge their detention.

The prisoner never heard some of the evidence against him because it was deemed classified and was given to the court in secret. He disputed some of the charges, such as that he had participated in a prison riot in Afghanistan, and argued that it was legal for him to have traveled there.

Other prisoners have been more recalcitrant; most of those called for hearings have refused to attend.

The new proceedings, known as administrative review boards, began in earnest this year. They consist of panels of three military officers conducting hearings at which detainees, none of whom are allowed to have lawyers present, can tell their stories and dispute accusations that they were part of the Taliban or allied with Al Qaeda. To be released, they must persuade the board that no matter their history, they are not a threat to the United States or its allies.

The Sudanese prisoner, whose name cannot be disclosed under ground rules set by the military, heard himself described as someone who eagerly joined the Taliban and fought on the northern front during the war in Afghanistan. An Air Force officer who acted as a kind of prosecutor also asserted that the man had been a ''special friend'' of a Taliban commander who worked under a senior Qaeda field officer. He had weapons training, the Air Force officer continued, and participated in a prison riot at Mazar-i-Sharif.

Like all the other military personnel in the hearing room, fashioned under a low ceiling in a double-wide trailer, the officer had his name tag covered with masking tape.

The Sudanese prisoner was at first sullen and responded tersely through his translator to questions about whether he understood the purpose of the proceeding. But when his turn came to rebut the accusations, he grew angry at the American military officers, at times lecturing the panel.

No, he said, he had never heard of the man described as his special friend. He was at Mazar-i-Sharif, he said, but could not have participated in the riot by captives at the ancient fortress there in 2002, as the Taliban collapsed, because he was handcuffed the entire time.

As to the accusation that he had weapons training, he said: ''What is wrong with that? Is it forbidden by the United States for anyone in the world to train with a rifle?''

Asked whether he was a threat to the United States, he replied: ''Never. I want to get married and live in my house.''

All the detainees whose cases are being heard by these administrative review boards have already been through a similar process in which different military panels determined that they had been properly imprisoned at Guantanamo as unlawful enemy combatants. During that set of hearings, 33 out of 558 detainees were deemed to have been improperly labeled enemy combatants. And about 5 of those 33 have been released, military officials said, because of difficulties in making arrangements to have them transferred to their home countries.

The new proceedings ''are just like a parole board'' for those held after the earlier round of hearings, said Capt. Eric Kaniut of the Navy, the chief administrator of both sets of hearings. ''The bottom line we look at is whether they are a threat to the U.S.''

So far, 64 detainees have had hearings scheduled before administrative review boards, and 39 have declined to attend. Captain Kaniut said one reason was that many were skeptical about the fairness of the proceedings. Another reason, he said, may be that the cases against them are so strong that a hearing would be futile.

That is believed to be the reason in the case of a 28-year-old Saudi who was described as proud to be thought of as a terrorist. He told one guard that he would cut his throat and struck others, according to a report read by an Army officer. He did not attend his hearing, and his case was disposed in 15 minutes.

The new set of hearings is supposed to be completed for all detainees by the end of the year, said Navy Secretary Gordon R. England, who makes the final decision on each case after receiving a recommendation from the military panel.

The hearings are similar but not identical to the earlier process used to determine whether the detainees were properly classified as unlawful enemy combatants. One important similarity is that most of the evidence used to determine a detainee's fate comes from classified reports, and the detainees are not permitted to see it. After the Sudanese prisoner was led back to his cell, for example, the military panel reconvened to hear the classified evidence supporting the charges against him.

During the earlier hearings, detainees frequently questioned the sources of the charges that they denied, only to be told they were not permitted to know them. Civil liberties and bar groups strongly criticized those hearings as lacking in basic aspects of due process, notably the ability to confront one's accuser.

When the military chose the underused Guantanamo naval base to house prisoners, mostly from the Afghan war, the Bush administration thought that the detainees would be beyond the reach of United States and international law and could be held indefinitely, without challenge.

By declaring the prisoners unlawful combatants who did not fight in accordance with the Geneva Conventions, the administration denied them the protections provided prisoners of war under the international treaty. Officials said that because Guantanamo was part of Cuba, United States law did not extend to the prisoners there.

Last June, however, the Supreme Court dealt a blow to the Bush administration, ruling that the Guantanamo prisoners could challenge their detentions in federal courts.

Since then, more than 100 of the prisoners have been represented by American lawyers who have filed habeas corpus petitions before federal judges, asking the courts to order the government to justify the continued detentions. The government has argued that its obligations to justify the detentions have been satisfied by the two sets of administrative hearings.