Gitmo Justice Is a Joke

By Andrew Cohen
Washington Post
Dec. 01, 2006

The same legal scholars who established beyond doubt earlier this year that the vast majority of Guantanamo Bay detainees are not threats to our national security after all are back with comprehensive new findings -- again from our own military's official records -- that obliterate the main premise of the White House's efforts to block judicial review for the terror suspects being held in Cuba.

The Bush Administration has argued for years that whatever due process rights to which the detainees are entitled have been and will be well satisfied by the rules set up by federal lawyers and military officials to evaluate and the try the men through military commissions. But a startling new report establishes that those procedures are a sham and inconsistent with the goal of vetting the detainees to accurately separate the truly bad guys from the poor Schmoes who happened to be in the wrong place at the wrong time when the war on terrorism began in 2001.

The first step in the legal process for the detainees is the Combatant Status Review Tribunal, which is supposed to act as a legal "triage" to determine which detainees merit which kind of treatment before the commissions. In February, Seton Hall University School of Law professor Mark Denbeaux and his detainee defense attorney son, Joshua Denbeaux, culled through declassified Status Review transcripts and determined that hundreds and hundreds of the detainees (most held for years) had been determined by military officials as neither Al Qaeda nor Taliban members (and most had never taken up arms against America or her interests).

Now, the pair has determined through a new set of declassified material that the Review Tribunals are precisely the sorts of kangaroo courts that the Administration's most cynical critics have long suspected to be in use behind a veil of military secrecy down on Cuba. In their report, "No-Hearing Hearings: An Analysis of the Proceedings of the Government's Combatant Status Review Tribunals at Guantanano," the Denbeauxs conclude based upon Defense Department documents that that "the Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee in 96 percent of the cases."

The study found that "the government's classified evidence was always presumed to be reliable and valid" while each request by a detainee to "inspect" classified evidence was denied. And, even in those cases where the government relied upon unclassified evidence, such evidence was denied to the detainee. "The only documentary evidence that the detainees were allowed to produce was from family and friends," the analysts found, and in part because "detainees did not always participate in their hearings no evidence was presented on behalf of the detainee" an astounding 89 percent of the time. But when a detainee participated in his own hearing, and sought to introduce such documentary evidence, military officials denied the request 60 percent of the time.

Even more disturbing, the report determined, was that the government took "mulligans" against those few detainees who were actually found not to be an "enemy combatants." In each of the three (out of 102 documented cases) in which the Status Review Tribunals "found the detainee to be not/no longer an enemy combatant...the Defense Department ordered a new [proceeding] to be convened and the detainee was then found to be an enemy combatant." If at first you don't succeed, try, try again. And in one case, the Defense Department had to try three times -- three different tribunal proceedings -- before it got the "enemy combatant" classification it was seeking.

There is more in the Seton Hall report that ought to leave flushed and breathless every single Senator (Republican and Democrat alike) who just voted for the White House's "Military Commissions Act of 2006." If the actual trials of the detainees are as empty and shallow and pre-ordained as were the Status Review Tribunals there is every reason to be mortified at the prospect -- made real by the legislation -- that the federal courts will be frozen out of vital oversight functions. If a regular trial court proceeding were this shoddy, this unwilling to perform a truth-seeking function, this unable to achieve a fair process, the judge presiding over it would be impeached.

In February, when the Denbeauxs came out with their first startling report, reasonable people asked why the government would continue to detain men whom the government itself had determined not to be members of Al Qaeda or the Taliban. The White House never satisfactorily answered that question. And now a new question reasonably emerges from the smoke and fire of the latest survey: why is our military going through the motions of faux justice at Gitmo? What is the benefit -- legal, practical and otherwise -- of implementing adjudicatory procedures that do not by their very nature determine legitimate, verifiable, and honest facts about the detainees?

You can be sure that the Justices of the United States Supreme Court will get around to asking that question, too. And how the government responds will determine in large fashion how the rest of this sorry story plays out.

Andrew Cohen writes Bench Conference and this regular law column for washingtonpost.com. He is also CBS News Chief Legal Analyst. His columns for CBS can be found online here .