Third Time’s the Charm?

Most courts, in what passes for the civilized world, will not admit evidence obtained under torture. That is why our government had to set up a new system to avoid these ​“technicalities.” Under the Military Commissions Act (MCA), which Congress passed in September 2006, the Bush administration can avoid presenting real evidence in hearings for Guantánamo detainees. It seemed like an easy concept for these war criminals but like everything else that they have concocted on the fly there are a few problems.

The MCA allows the government to rely on the Combatant Status Review Tribunals (CRSTs), the initial non-public hearings that were hastily pulled together after the Supreme Court held in 2004 that the detainees had a right to counsel and to a procedure to assess the appropriateness of their continued detention. From September until December 2004, the government held more than 550 of these kangaroo tribunals. 

Lawyers for the detainees knew that the CSRT’s were a sham but it was not until the summer of 2007 when two military attorneys involved in the tribunal process came forward to expose the frauds for what they were. One of the Attorneys, Lt. Col Stephen Abraham put it this way: ​“What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence.”

The MCA also retroactively repealed the ancient writ of habeas corpus, a 500-year-old law which allowed prisoners to come before a court and demand to be told why they are being held. Instead, the MCA allows prisoners to file a petition with the D.C. appellate court. But such legal challenges are severely limited.

Several hundred of these petitions – including one from my client Abdul Hamid al-Ghizzawi – are now clogged in the appellate court system. However, in a surprising ruling, the otherwise compliant D.C. appellate court recently ordered the government to provide materials from the 2004 CSRTs to counsel for the detainees to demonstrate what it knew about the men at the time they were found to be ​“enemy combatants.”

This sent the government into a tizzy. The reason? The government knew (and we didn’t) that the military had not bothered to retain most of those documents. So now the government has no documents showing any reason for holding these men.

After stalling, the administration finally admitted in September that it hadn’t kept those materials. (It seems the White House didn’t foresee that their friends on the appellate court would require them to produce anything – like evidence – to justify holding these men.)

In October, however, the D.C. appellate court jumped in once again to save the administration from its own incompetence. The court suggested that the government just start over, ​“taking care this time to retain all the government information.” There you have it: Three years after the government held hearings to determine whether the men at Guantánamo were ​“enemy combatants” or ​“non-enemy combatants,” the government is preparing to do it all over again – because it didn’t keep the paperwork the first time. 

For my client al-Ghizzawi, Mr. Al-Ghizzawi that will mean a third tribunal. The first was in 2004, and it found him to NOT be an enemy combatant. A second tribunal, which was hurriedly put together a few weeks later with a new, more submissive panel (but with the identical garbage evidence), now found him to be an enemy combatant.

When I heard that the government was contemplating doing all of these tribunals again, I sent a letter to the government attorney whose duty apparently is to obfuscate every legal issue in the Guantánamo cases. I asked him if the government intended to do another Combatant Status Review Tribunal for al-Ghizzawi and, if so, could I please also be notified so that I could send documents that will show his innocence?

What’s more, I asked if I could be present at Mr. Al-Ghizzawi’s third CSRT if such an event is to take place and I queried as to whether the military has decided whether attorneys can be present at the new tribunals.

I waited more than a week for a response. Then I sent an email asking those questions again. This time I received a reply: ​“We are in receipt of your letter and email. We are not in a position to provide any information at this time.” I immediately responded asking if he could tell me when he might anticipate being able to provide that information to me….I don’t expect a response.

Perhaps one day I will learn that the military conducted a third tribunal for al-Ghizzawi. He will probably be too ill to attend or at least too ill to participate. The media will be there, government attorneys too… but I do not expect the government will extend me an invitation.