The prisoners at Guantánamo Bay – or Azkaban, as one of my clients, a Harry Potter fan, calls it – have had no access to a hearing in a court of law. Instead, Guantánamo’s inmates are subjected to two kangaroo procedures: Combatant Status Review Tribunals (CSRTs) and Administrative Review Boards (ARBs).
The CSRTs are the tribunals that determine whether an individual is an “enemy combatant.” Needless to say, the cards are stacked against the prisoner from the get-go. The tribunals are allowed to rely on hearsay evidence and information acquired though coercion. Any evidence deemed “secret” is withheld from the prisoner. Can you imagine trying to defend yourself against evidence kept secret from you?
Amazingly, my client Abdul Al-Ghizzawi (a Libyan national who ran a bakery in Jalalabad, Afghanistan before being handed to the Americans for a bounty in late 2001), was found by the CSRT to have no ties to terrorism and not to be an enemy combatant. Unfortunately, the higher-ups intervened and the tribunal’s judgment was overturned six weeks later upon the miraculous discovery of “new evidence.” I saw the classified proceedings of my client’s tribunals, and I can assure you that no new material was considered. Mark and Joshua Denbeaux, authors of the study “No-Hearing Hearings,” have discovered that some prisoners went through as many as three CSRTs before the tribunals made the “correct” determination that a prisoner had ties to terrorism.
The second procedure in this Kafkaesque process, the ARB, is an annual (and usually meaningless) ritual in which the military assesses an enemy combatant’s status. In several now-infamous cases, the ARB darkly noted that the prisoner owned a Casio wristwatch (which could conceivably be used to time explosives). At one such hearing, the prisoner in question noted that American military personnel also wear Casio watches and sardonically asked if they too were terrorists. Similarly, karate skills, knowledge of computers and participation in the pilgrimage to Mecca have also been considered factors supporting “continuing detention.” When the ARB recommends the release of an individual, there is never an apology or an acknowledgment that a mistake has been made. In order to save face (and thwart possible lawsuits), the U.S. government insists that a release “does not equate to innocence.”
Last year I was invited to submit a letter on behalf of Al-Ghizzawi to the ARBs. The government did everything possible to prevent me from meeting and communicating with my client and yet, in a phony gesture, they invited me to advocate for this man who at the time I had never met.
I have now met with Al-Ghizzawi several times and I know him to be heartsick for his family, physically ill and completely innocent. I will make the details of his capture by bounty hunters and his appalling treatment by negligent U.S. officials clear to the review board. Still, I know the procedure is meaningless. On Feb. 22 the government informed lawyers that some Guantánamo prisoners have been eligible for release for two years, but have been held back by bureaucratic and diplomatic impasses.
I am also expected to make an ARB submission for my second client, Razak Ali, a 36-year-old Algerian, and I find myself in the same place I was last year with Al-Ghizzawi. I know virtually nothing about him because the government has fought to prevent me from receiving any paperwork regarding his detention. The court finally allowed me to meet with Razak Ali in November and have him sign a representation form (making me officially his lawyer). Not wanting to jeopardize this all-important meeting, I decided against talking to my client about his detention. I kept our conversation light. We spent a long time discussing the Harry Potter books, his favorite books at the Guantánamo library.
Ali sees parallels between George W. Bush and J.K. Rowling’s arch-villain, Voldemort. Guantánamo is the real-world equivalent of Azkaban, the cheerless prison guarded by the soulless “tormentors.” It seems almost natural that fact and fantasy collide in Guantánamo, the prison camp dreamed up by the Bush administration lawyers. Checks and balances, constitutional protections and longstanding legal traditions all dissolve before their fanciful “unitary executive theory.” I submitted my ARB response for Ali on Feb. 23, and I did not mention his comparison of Bush to Voldemort. The government would probably conclude that it only proved he was an enemy of the state. Instead, I asked a basic question: “How can I be expected to make a submission regarding Ali when the government refuses to provide any information about the reasons for his detention?” I don’t expect an answer.