- The Washington Times - Saturday, July 31, 2004

The military has begun holding review tribunals for suspected al Qaeda and Taliban fighters held at the U.S. Naval Base Guantanamo Bay, Cuba, giving the detainees their first formal chance to explain why the United States should not consider them “enemy combatants.”

All of the nearly 600 prisoners, many of whom have been held at the base for more than two years, will have the opportunity to appear before these tribunals, Navy Secretary Gordon England said Friday.

Mr. England said eventually he wants three tribunals holding up to 24 hearings a week to complete the entire process in 120 days. And each hearing, he said, would be a “fact-based administrative proceeding … not a trial.” It would determine whether the person detained had been correctly designated an enemy combatant.

The decision to hold the detainees as enemy combatants, rather than regular prisoners of war, has left them in what critics say is a legal black hole, without any means — until now — to challenge their detention.

The tribunals will “review information surrounding the capture of the detainee … and any other pertinent information related to the designation as an enemy combatant,” according to the Pentagon, which carefully avoids using the word “evidence.”

After the hearing, the tribunal — a panel of three officers — will deliberate and make a recommendation, which will be reviewed by a military lawyer to ensure that they were “legally sufficient,” Navy spokeswoman Cmdr. Beci Brenton said. The recommendations of the lawyer and the tribunal would be passed to Adm. James McGarrar, who will either approve the tribunal’s decision or order another hearing.

If detainees are found not to be enemy combatants, the military “will then work with the Department of State for arrangements to return that person to their home country,” Mr. England said. Those found to be combatants will remain in detention.

Detainees are not obliged to appear before the tribunals, but if they do, they will have the “opportunity to work with a personal representative” appointed by the military “to assist in preparing” their case, the Pentagon said.

But Cmdr. Brenton pointed out that these representatives would not be lawyers, nor would they be the detainee’s advocate. “There’s no confidentiality,” she said. “If the detainee tells them anything incriminating, they are obliged to pass that on to the tribunal.”

The tribunals are separate from the military commissions that later this summer will begin to hear charges in the handful of cases of detainees against whom the United States has sufficient evidence to prosecute. The commissions will be able to impose sentences up to and including death, and their verdicts will be subject to review by a military panel.

The tribunals also are separate from — though connected to — the writs of habeas corpus that every detainee was given the right to file by the Supreme Court last month. The hearings on those writs, which are being filed in the U.S. District Court in Washington, will likely turn on whether the review tribunals meet the test laid down by the Supreme Court in another case, that of Yaser Esam Hamdi.

In the Hamdi case, the court said that U.S. citizens detained as enemy combatants had a right to “due process” — meaning a fair hearing with the right to put their side of the story to a neutral adjudicator.

“Although the Guantanamo detainees are noncitizens,” Eugene Fidell, president of the National Institute for Military Justice, said, “everyone is assuming that [the Hamdi case] is where the courts will look for guidance in terms of what the test should be.”

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