by TChris

Are detainees being held in secret, depriving them of their right to challenge their detentions?

On Tuesday, Antonella Notari, spokeswoman for the Switzerland-based [International Committee of the Red Cross], said terrorism suspects reported by the FBI as captured have never turned up in detention centers known to the Red Cross, and the United States has failed to reply to Red Cross demands for a list of all detainees.

The Pentagon denies that it's hiding detainees, but won't comment on whether other agencies might be doing so. The CIA won't comment either.

Mehdi Ghezali, age 25, spent 2 1/2 years at Guantanamo after being arrested in Pakistan after 9/11. Ghezali, a Swede, alleges he was subjected to torture after he stopped answering questions during interrogations:

"They put me in the interrogation room and used it as a refrigerator. They set the temperature to minus degrees so it was terribly cold and one had to freeze there for many hours -- 12 to 14 hours one had to sit there, chained," he said, adding that he had partially lost the feeling in one foot since then.
Ghezali said he was also deprived of sleep, chained for long periods in painful positions, and exposed to bright flashes of light in a darkened room and loud music and noise.

"They forced me down with chained feet. Then they took away the chains from the hands, pulled the arms under the legs and chained them hard again. I could not move," he said. After several hours his feet were swollen and his whole body was aching. "The worst was in the back and the legs," he said.

What offense did he commit to warrant his prolonged detention? Apparently, none:

The Red Cross said today it is fearful that the U.S. is hiding detainees in secret places and not granting access to them.

"We have access to people detained by the United States in Guantanamo Bay, Afghanistan and Iraq, but in our understanding there are people that are detained outside these places for which we haven't received notification or access," said Antonella Notari, a spokeswoman for the International Committee of the Red Cross.

....Notari told The Associated Press that some suspects reported as arrested by the FBI on its Web site, or identified in media reports, are unaccounted for. "Some of these people who have been reported to be arrested never showed up in any of the places of detention run by the U.S. where we visit," Notari said.

One of the places the Red Cross suspects the U.S. is secretly holding prisoners is the British island of Diego Garcia, in the Indian Ocean.

The Geneva Conventions on the conduct of warfare require the United States to give the Red Cross access to prisoners of war and other detainees.

Update: Check out the June, 2004 Human Rights First Report "Ending Secret Detentions."

The Supreme Court ruled on June 28 that Guantanamo detainees can challenge the legality of their detentions. The Pentagon touted its compliance with the ruling by setting up a system of one-sided hearings. The hearings will be presided over by 3 military officials --and the detainees can't consult with or be represented by counsel.

The U.S. government should allow detainees access to lawyers and to their families and permit detainees to begin to challenge their detention in the federal court system," said Alexandra Arriaga, director of government relations for Amnesty International USA. "They've held people for over two years now. They should know at this point who they suspect of a crime, charge them, and try them in a fair court of justice in an open process. And the others should be released," Arriaga said.

Rachel Meeropol, a human rights lawyer with the Center for Constitutional Rights, called the new procedures inadequate and illegal, and said they fall far short of satisfying the Supreme Court's ruling. "The fact is they're coming up with these procedures on the fly," said Meeropol, whose group has filed cases in federal court seeking the release of several Guantanamo prisoners.

Arriaga said that while the government should be doing everything possible in light of the court ruling to facilitate judicial review of the lawfulness of the detentions, it instead appears to be trying to narrow the scope of the review. Arriaga noted that the new process remains entirely within the U.S. military, and that all sorts of evidence will be admissible, including from anonymous witnesses and statements that may have been coerced.

Amnesty issued this press release yesterday.

by TChris

Responding to the Supreme Court's reminder that the executive branch of government does not possess limitless and unreviewable power, the Pentagon has begun to demonstrate a repect for due process that is half-hearted at best.

The Pentagon said on Wednesday it was creating panels of U.S. military officers to review whether Guantanamo prisoners were being held legally and would notify them within 10 days of their right to challenge their detention in U.S. courts.

The detainees aren't given access to lawyers for proceedings before the tribunal. They are given the assistance of a military officer (kinda like the practice of assigning prison guards as advocates for inmates who use a prison's grievance system) but the officer isn't required to have legal training.

The degree to which detainees will be allowed to confront witnesses and to present evidence is unclear, although detainees will apparently be allowed to call witnesses. Whether the proceedings will be open to public scrutiny is undecided.

If the review system has the customary procedural safeguards that attend a serious hearing or trial, and if it can be adequately navigated with the help of someone who lacks training and experience as an advocate, the Pentagon's respect for due process will be determined by the willingness and ability of the panelists to provide a review that is both neutral and meaningful. Nothing in the administration's attitude to date suggests that it wants detention decisions reviewed by fair and independent minds.

The review may produce the release of the most embarrassing cases -- the ones that would be sure losers in court. The rest of the detainees will have to seek relief in federal court, where they can hope to have an impartial review of their imprisonment.

President Bush has named nine more Guantanamo detainees as eligible for military tribunal trials. 15 detainees to date have been designated. Charges have been filed only against three of them.

Reporters from the Associated Press conducted a tour of Guantanamo. They were allowed to see some prisoners and watch some interrogations without sound. The reporters were favorably impressed.

A two-day tour of Guantanamo Bay afforded The Associated Press the most extensive access ever allowed independent journalists, giving them views of some 50 detainees, including some in a new maximum-security prison. ...Watching through mirrored glass, and with the sound turned off, the AP also witnessed three interrogations, including one in the part of the camp reserved for problem detainees and prisoners believed to hold information important to the fight against international terrorist groups.

We have our doubts about these controlled show tours, especially in light of reports like these:

The International Committee of the Red Cross, the only independent group allowed to visit the detainees, issued a rare public rebuke of conditions in October. It and other groups contend the prolonged detention has harmed detainees' mental health. Some critics, however, charge that is the result of harsh interrogation techniques....Twenty-one detainees have tried to kill themselves 34 times, the most recent attempt coming last January.

by TChris

The Bush administration traded five terrorism suspects held at Guantanamo to Saudi Arabia in exchange for the release of five Britons and two others convicted of terrorist attacks in Saudi Arabia. This news follows Friday's denial by the spokesman for the National Security Council that the release of the Saudi prisoners was related to the release of the British prisoners.

The deal generated controversy within the administration, both as a matter of policy and in the selection of the prisoners to be released. Once the deal was finally made, the administration took pains to conceal its terms.

"We did not want to make it a clear quid pro quo swap, so we put a distance between them," one of the officials said.

The Saudis were released in May 2003. The Saudi government freed the British prisoners three months later.

by TChris

Forced by the Supreme Court to respect the rights of Guantanamo detainees, the Bush administration has grudgingly agreed to let 13 lawyers visit their uncharged clients.

Thomas B. Wilner ... who represents the 12 Kuwaitis who won the right to federal court review, said, "I'm pleased that at long last the government is beginning to act reasonably." He added that the government had also agreed to an early visit by a lawyer for the 13th prisoner, an Australian who was involved in successfully challenging the administration's contention that Guantánamo was outside the reach of United States law.

The Center for Constitutional Rights, representing more than fifty Guantanamo detainees, filed habeas petitions on Friday "seeking early hearings on whether eight prisoners at Guantánamo have been lawfully detained." While the administration would prefer to substitute its own "annual review of the detentions" for judicial review, lawyers for the detainees will insist that federal courts do their job by acting as a check against the arbitrary use of power by the executive branch of government.

Jose Padilla's lawyer on Friday filed a new habeas petition in Charleston, S.C., having been told by the Supreme Court that Padilla's original petition was filed in the wrong district.

Civil liberties expert Elaine Cassel reports that this week's three Supreme Court detainee decisions may not be a victory for civil liberties after all. In fact, she calls the score "Bush 3, Civil liberties 0"--or "game, set, match - to George Bush."

Arthur at Light of Reason feels the same way. As TChris reported here, law prof Jonathan Turley expresses a similar pessimistic view, writing that the decisions show how imperiled our constitutional system has become.

And from Yale law professor Jack Balkin:

In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives.

Balkin also summarizes here:

Putting together Justice Thomas' opinion in Hamdi with his vote in ACLU v. Ashcroft, we may infer that the President can throw any citizen in a military prison indefinitely, but that the citizen has the right to view pornography while there.

House Democaratic leader Nancy Pelosi today released the following statement on the Supreme Court decisons with respect to the rights of detainees and Bush-defined "enemy combatants."

The Supreme Court's decisions in the Hamdi case and the case involving the Guantanamo detainees are triumphs for the rule of law. The notion that the President has the unchallengeable authority to define the circumstances of a person's detention, especially that of a United States citizen, is contrary to our nation's history and experience.

"The right to counsel and the right to contest government actions in court are among our most cherished liberties. We cannot, and we must not, allow our civil liberties contained in the Constitution to become a casualty in the war on terrorism. "The Supreme Court's decisions today are a timely reminder of the constant need to evaluate actions taken in the name of national security, no matter how well-intentioned those actions may be."

Where's Diane Feinstein? Still partnering up with Orin Hatch to draft bills that will diminish our rights? Nancy rocks in our book. Diane doesn't.

The National Association of Criminal Defense Lawyers (NACDL) has issued a press release concerning today's historic Supreme Court decisions. Here's a snippet:

For over two years, the Bush Administration have tried to have it their
way, not the Constitutional way. These decisions are a stern rebuke. The
Executive Branch may not be the sole arbiter of who is detained and for how
long. Detainees must have access to counsel and the courts,” [NACDL President Bo] Edwards said.

President-Elect Barry Scheck, who met with Navy Secretary Gordon England June 23 to discuss the draft procedures for review of individual detainees, predicted that the Defense Department will go back to the drawing board. “The Secretary of the Navy’s administrative review procedures are dead in the water."