Guantánamo Bay detainees are shackled legally, too

GUANTÁNAMO BAY, Cuba — At one end of a converted trailer in the U.S. military detention center at Guantánamo Bay, a graying Pakistani businessman sat shackled before a review board of uniformed officers, pleading for his freedom.

The prisoner had seen only a brief summary of what officials said was a thick dossier of intelligence linking him to al-Qaida. He had not seen his own legal papers since they were taken away in an unrelated investigation. He has lawyers working on his behalf in Washington, London and Pakistan, but at Guantánamo his only assistance came from an Army lieutenant colonel, who stumbled as he read the prisoner's handwritten statement.

As the hearing concluded, the detainee, who cannot be identified publicly under military rules, had one question. He is a citizen of Pakistan, he noted. He was arrested on a business trip to Thailand. On what authority or charges was he even being held?

"That question," a Marine colonel presiding over the panel answered, "is outside the limits of what this board is permitted to consider."

Under a law passed by Congress and signed by President Bush in October, this doublewide trailer may be as close to a courtroom as most Guantánamo prisoners ever get.

The law prohibits them from challenging their detention or treatment by writs of habeas corpus in the federal courts. Instead, they may only petition a single federal appeals court to examine whether the review boards followed the military's own procedures in reviewing their status as "enemy combatants."

But an examination of the Guantánamo review boards by The New York Times suggests they have often fallen short, as a source of due process for the hundreds of men held there and as a forum to resolve questions about what the detainees have done and the threats they may pose.

Some limitations have long been evident. The prisoners have no right to a lawyer, or to see evidence, or even to know the identity of their accusers.

What has been less visible, however, is what many officials describe as a continuing shortage of information about many detainees, including some who have been held on sketchy or disputed intelligence.

Behind the hearings that journalists have observed is a system that has at times been as long on government infighting and diplomatic maneuvering as it has been short on evidence.

The result, current and former officials acknowledged, is that some detainees have been held for years on less-compelling information, while a growing number of others for whom there was thought to be stronger evidence of militant activities have been released under secret arrangements between Washington and their home governments.

Military officials emphasize that the boards are an administrative forum and were never intended to replicate judicial standards of fairness. "At the end of the day, it's about giving the detainee the flexibility and freedom to present his case," said Capt. Philip Waddingham, a former Navy pilot who oversees the operations of the panels at Guantánamo.

"Kangaroo courts"

To date, 377 Guantánamo detainees, nearly half of the 773 who have been held there, have been released or transferred to other governments. Of those, about 150 have been repatriated through the review process since mid-2004, officials said.

The administration's push to reduce the Guantánamo population is more evident in another statistic. The final arbiter of prisoner releases, Deputy Defense Secretary Gordon England, has overruled the panels' recommendations in more than 15 percent of the 237 cases he has decided so far this year, officials said. In virtually all of those, the boards had recommended continued detention.

Still, a recent study of the process found that detainees trying to argue their innocence were routinely denied witnesses they tried to call, even when the witnesses were other prisoners at Guantánamo. Lawyers for the detainees complain that the government has made almost no effort to have the panels consider information the lawyers have gathered and has often blocked their attempts to learn the allegations against their clients.

"We have tried again and again to have a say in the process," said Barbara Olshansky, who has coordinated much of the work of the detainee lawyers for the Center for Constitutional Rights. "But we learned pretty early on that these were kangaroo courts."

The detainees themselves appear to have given up on the reviews as a way to win their freedom. In the latest round of annual hearings, which were completed this month, only 18 percent of the prisoners chose to attend.

Ambitions undone

Several officials who helped establish the review panels said they tried to create mechanisms that would allow detainees to present witnesses and evidence, and allow the panels to gather new information.

But some officials said those ambitions had often been undone by the speed of most reviews — often conducted in hours — and the low priority assigned to the gathering of new information on the detainees by intelligence agencies and foreign governments. "There are real time constraints and real resource constraints," one retired military officer said. Waddingham, the chief of the review office at Guantánamo, said the boards followed the recommendations of military-intelligence officials 95 percent of the time. But both he and the overall head of the review program, Frank Sweigart, insisted the panels were able to get new information when they needed it.

"We are always looking for supporting facts, and if we can't find them, we ask for them," said Sweigart, a retired Navy captain. But other current and former officials described a system that was frequently inefficient in collecting information that might determine a prisoner's fate.

No hint of due process?

Although lawyers have begun to conduct their own investigations into accusations against their clients, a former military-intelligence officer who has presided over dozens of the review boards dismissed those contributions.

"As far as what the habeas lawyers have to say, for the most part it wouldn't factor in, because they have made themselves not credible," said the officer, a Marine colonel who suggested that the lawyers took detainees' claims of innocence at face value.

The lawyers respond that the obstacles to their input in the process raise questions about the military's desire to learn everything it can about the detainees.

More than a week after the hearing for the Pakistani businessman accused of ties to al-Qaida, a Washington lawyer, who had been trying to help him, said he had not even known the session had taken place.

"There is no hint of any kind of due process in this," said the lawyer, Gaillard Hunt.