With the onset of the so-called "war on terror," the Bush administration and the Department of Defense carved out a new class of prisoners: "enemy combatants," whose supposed ties to terrorist activity exempt them both from the protections of US law, as well as from prohibitions against abuse guaranteed under the Geneva Conventions and other international statutes. Civil liberties groups say that this new designation effectively and deliberately strips the detainees at Guantánamo Bay of the due process rights ostensibly afforded both soldiers and civilians.
In the opinion of Marjorie Cohn, a law professor at the Thomas Jefferson School of Law and executive vice president of the legal advocacy association National Lawyers Guild, "The reason that the US took those prisoners to Guantánamo was because it was hoping that Guantánamo would be a legal black hole, and that they would not have access to any courts."
The Bush administration and the Pentagon have insisted that detainees are afforded fair legal proceedings through alternative military judicial institutions, which were established in the wake of the September 11, 2001 terrorist attacks in order to review and prosecute the cases of terrorism-related prisoners.
Opponents charge that these ad-hoc legal procedures are an attempt to substitute the judicial conventions of US and international law with an arbitrary, secretive system.
All but a tiny minority of the detainees have languished at the military camp without even being charged with any crime. Fair and open judgment is all but impossible, say critics, especially because from the outset, detainees have no real opportunity even to question their initial imprisonment.
"It?s incredibly important for anyone who is being held under the authority of the United States to be able to demand an explanation for why they?re being held, what the basis of that detention is," said Rachel Meeropol, a staff attorney with the Center for Constitutional Rights, a legal organization currently advocating on behalf of more than 150 Guantánamo detainees.
Noting that prisoners stood little chance of receiving a fair trial if judged by the same officers responsible for their imprisonment in the first place, Meeropol added, "at this point, for these individuals, I think the only fair process is in the US federal courts."
In several cases, the courts have agreed.
The Supreme Court delivered the first blow to US detention policy in the 2004 case of Rasul v Bush, litigated by the CCR, when it ruled that detainees have the right to challenge their detention in federal court.
Last November, a federal district judge effectively suspended the military commissions created by the Bush administration to prosecute the handful of detainees actually charged with war crimes. The court held that the rules of the military commissions were unlawful because the review process allowed the exclusion of the defendant from hearings and the withholding of evidence, and also because there was not an adequate procedure in place to determine whether the defendant was entitled to Geneva Convention protections as a prisoner of war.
According to a recent report by the human rights group Amnesty International, the White House and the Pentagon have bristled against the disapproval of the courts, reportedly using both formal and informal channels to block detainees from exercising their legal rights.
Drawing on legal documents and the statements of detainees, Amnesty reported that the administration has thwarted attempts by prisoners to file legal petitions by limiting lawyers? access to the facility. In addition, the group alleged that detainees seeking outside legal counsel have been subjected to retaliatory ill treatment.
After the Rasul ruling, the Pentagon attempted to launch its own interpretation of the Supreme Court?s decree for judicial review in the form of the Combatant Status Review Tribunal (CSRT). The government has argued that this separate legal system, in which a panel of military officers determines whether a detention is legally justified, is appropriate because "the determination of who are enemy combatants is a quintessentially military judgment."
The legality of the CSRT remains in question under ongoing litigation. In January, one federal judge ruled that the procedure violates due process guarantees, but another upheld the CSRT system, ruling that detainees "possess no cognizable constitutional rights."
Amnesty noted that in a CSRT proceeding, the detainee lacks any access to independent legal representation, while the officers presiding over the case are able to admit any evidence they deem appropriate, including hearsay and confessions extracted through torture.
The State Department reported in late March that for 520 of the 558 cases reviewed, the tribunals had confirmed the detainee?s "enemy" status.
Meeropol called these proceedings "sham tribunals."
She commented, "The military has control of all of the evidence, all of the witnesses, the prosecution, the defense, and thus basically predetermine[s] the outcome."
