Columns

At Guantanamo, America's own show trials

By ROBYN BLUMNER
Published December 10, 2006

Whom are show trials for? They aren't for the defendant who knows he is being railroaded. They aren't for the persecutors, er, prosecutors who know they are denying the accused any real chance to defend himself.

Show trials are for the public. They are an attempt to convince the gullible, uninformed, half-listening masses that justice is being served when what is really being offered up is political theater.

Welcome to the world of the Combatant Status Review Tribunals, the American show trials for the detainees at Guantanamo.

There have been 558 tribunal hearings for the Guantanamo prisoners. Their stated purpose was to determine whether the detainee was properly designated as an enemy combatant. But the process has been a farce wrapped in a sham inside a travesty. Virtually every hearing was an empty gesture, less designed at getting at the truth than justifying the ongoing outrage that is Guantanamo.

"No-Hearing Hearings" is a new report by Mark Denbeaux, a law professor at Seton Hall University School of Law and his son Joshua Denbeaux, who is counsel to two Guantanamo detainees. These scholars along with 21 law students analyzed the records and transcripts from the 393 detainee hearings available, focusing particularly on 102 hearings in which the full record was accessible. They found that the men detained at Guantanamo were uniformly denied anything resembling due process.

The rules state that the detainees will have the right to cross-examine witnesses, but that can be hard when the government doesn't bother to call any witnesses. Not a single government witness was brought forth in any of the hearings the researchers reviewed. Instead, in over half the cases, the U.S. government relied solely on classified evidence that was presumed to be valid. It was evidence that the detainee never got to see or rebut. And even when the government relied on unclassified evidence, the detainees were largely barred from seeing it.

In 96 percent of cases, the detainee, who had no lawyer, had to present a defense without hearing any facts upon which his enemy combatant designation was based, beyond a conclusory summary. These men must have thought they were in Stalin's Russia or Mao's re-education camps rather than an American judicial proceeding. Defending yourself without being allowed to see the evidence against you is a neat trick.

And then there were the obstacles. According to the written tribunal procedures, detainees were supposed to have the right to present documentary and witness evidence to the tribunal if that evidence was "reasonably available."

Yet, in every case where a witness was requested who was outside Guantanamo, the request was rejected. Even when fellow detainees were requested as witnesses, it was denied half the time.

As to documentary evidence, it wasn't produced even when the material was within the government's control and easy access.

Mohammad Atiq Al Harbi asserted that his passport records would demonstrate that he was only in Afghanistan for eight days and that fact would exonerate him. But the passport records were never accessed and Al Harbi was found to be an enemy combatant.

In another case, an Algerian detainee asked that documents from a court hearing in Bosnia be produced, since that court had acquitted him of terrorist activities. The documents were never produced because they were considered not "reasonably available," even though the tribunal relied on another document from the same Bosnian court hearing as a basis for finding the detainee an enemy combatant.

The researcher found that only 11 percent of detainees were allowed to introduce any evidence, and that was mostly letters from friends and family.

Then, when a miracle did happen and a detainee was actually found to have been mistakenly designated an enemy combatant, the government went back for a second and third bite of the chickpea.

Out of the 102 cases that could be evaluated in full, three detainees were initially found not to be enemy combatants. In each case, the government got the ruling reversed.

In the most egregious example, a detainee who had been unanimously determined to be a non-enemy combatant at two prior tribunals was finally found to be one in his third one. And in each case where there was a subsequent hearing, the detainees were barred from the proceedings and "convicted" in absentia.

This is Bush Country justice, which has no discernible relationship to classic notions of American justice, except that it is who we are now. The abomination that is the Military Commissions Act of 2006 strips every Guantanamo detainee of his habeas corpus rights to challenge these rigged procedures. If allowed to stand, the detainees could be held in perpetuity.

Meanwhile, the world's audience is supposed to buy the tribunal show as an example of America's vaunted fairness. I guess President Bush and Vice President Cheney should take a bow.

[Last modified December 9, 2006, 20:42:29]