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U.S.: Rights Lawyer Says Washington Doing Too Little For Guantanamo Detainees

  • Andrew Tully

Last week, the U.S. Supreme Court ruled that the Defense Department must grant court hearings to each of the approximately 600 detainees captured in Afghanistan and held at the U.S. naval station in Guantanamo Bay, Cuba. The court said the U.S. Constitution requires that the prisoners have the opportunity to challenge their status as enemy combatants, which gives the United States the right to hold them virtually indefinitely. In response, the Pentagon announced on 7 July that it will hold military reviews for the men. But a lawyer for Human Rights Watch told RFE/RL that the Pentagon has not adequately met the Supreme Court's demand.

Washington, 9 July 2004 (RFE/RL) -- In its ruling, the U.S. Supreme Court said any person under arrest must have the right to challenge his detention before a neutral court.

This right -- known in U.S. law as "habeas corpus" -- applies not only in the United States, but also in foreign outposts, such as Guantanamo Bay, Cuba, where the United States essentially exercises sovereign control.

The administration of President George W. Bush responded quickly. On 7 July, Deputy Defense Secretary Paul Wolfowitz signed an order that each of the Guantanamo detainees must be notified by 17 July of the review -- and of his right to a habeas corpus hearing in a U.S. federal court.

At the hearings, three military officers -- not judges -- will review each case. Each defendant will be allowed to argue for his freedom with the help of an interpreter and a military officer, but not a lawyer.

Reed Brody, a lawyer for Human Rights Watch in New York, said this arrangement is the very least the Pentagon could have done to comply with the court's ruling. Brody told RFE/RL that while the directive was specific, it still left room for interpretation, and the Pentagon took advantage of that.
Brody said that in setting up these military reviews, the Bush administration appears to be trying to drag out the process legally by generating further challenges to its policy on prisoners.


"[The Pentagon's decision] seems to put the worst light on what the Supreme Court proposed. The Supreme Court left a lot open. It looks like [Pentagon officials have] tried to figure out what they could get away with," Brody said.

What is not open to interpretation, Brody said, is the right of prisoners to challenge their detention. He noted that in the decision, written by Justice Sandra Day O'Connor, the court specified that habeas corpus hearings must be held before impartial judges and that the defendants must have lawyers.

Brody also pointed out that each military hearing will be conducted to bolster the Pentagon's case that each prisoner is being held legally. He said this is contrary to U.S. civil law, which says a defendant is presumed innocent and that the state must prove him guilty beyond a reasonable doubt.

Only if a prisoner manages to overcome these hurdles will he be allowed to come into the custody of the U.S. State Department, which then would repatriate him to his home country.

On 6 July, U.S. State Department spokesman Richard Boucher told reporters that the Bush administration is moving ahead aggressively to resolve the detainees' cases. "Through a variety of these mechanisms, we have established the ways of resolving as many of these cases as is possible," he said. "And, of course, now we know the Supreme Court has also taken some action that may lead to other ways of resolving these cases."

But Brody believes the legal obstacles that the Bush administration is placing in the way of the detainees will be nearly impossible to overcome.

Essentially, Brody said, each prisoner will be for the most part alone in the confrontation over his detention. He will have only a military consultant -- not a lawyer concerned specifically with freeing him, advising him of his rights and drawing on his own professional experience to mount as convincing a defense as possible.

Each detainee will have the right to challenge the government's witnesses, and to call his own witnesses, but only if they are "readily available," in the words of Wolfowitz's directive.

Brody said that in setting up these military reviews, the Bush administration appears to be trying to drag out the process legally by generating further challenges to its policy on prisoners.

The administration expects these challenges to be protracted, Brody said, thus giving the Pentagon what it wanted in the first place -- extended custody of the prisoners -- even though he believes the courts eventually will rule in the prisoners' favor.

In the meantime, Brody said, the Pentagon evidently believes that the vast majority of the military hearings will conclude with rulings that the defendants are, in fact, enemy combatants. He said military officials believe these decisions will somehow influence the subsequent habeas corpus hearings. "The [Bush] administration is trying to make the best of a bad situation and to blunt the impact of the Supreme Court decision," he said. "But this is not going to end it, and the detainees are still going to go to court."

In other words, Brody said, each of the prisoners likely will get a hearing to argue for his freedom -- before a civilian judge, and with a lawyer. And he says he believes the hearings will begin soon, given that the detainees already have been held at Guantanamo Bay for more than two years.

Brody said the Pentagon's efforts to delay the justice demanded by the Supreme Court probably will not work. In fact, he said, the Bush administration missed a great opportunity to reap goodwill, not only among the American people during an election year, but also around the world.

"The [Bush] administration had a chance to take the Supreme Court decision and use it to rectify its policies and to say, 'Look, the war on terrorism is going to be fought within the bounds of the U.S. Constitution.' And they didn't take that opportunity. They continued in the narrowest possible interpretation and the greatest limitation of defendants' rights," he said.
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