Among the many aspects of President Obama's latest Executive Order on Guantanamo Bay is a requirement that detainees be assigned a "personal representative" to make their case to a newly-constituted review board. While that may sound like a nice idea, having recently seen what "personal representatives" do for U.S. prisoners in Afghanistan, I'm skeptical.
Yesterday's order was billed by the Obama Administration as a generous addition to what the law requires, a "discretionary" additional annual review that the government will provide to prisoners it has deemed too dangerous to release and therefore detainable until (and if ever) this far-reaching war "against al Qaeda, the Taliban and associated forces" is over.
Given that this is an additional process of review - additional to the right of habeas corpus, or review by a federal court, that the Supreme Court has said the law already requires - it's arguably a step forward. Although it represents an unfortunate acceptance by the Obama administration of the entire concept of long-term administrative detention based on some ill-defined concept of dangerousness, at least it gives prisoners another opportunity to defend themselves.
But is this a real step forward, or merely a dance around the requirements of due process?
The Administration's decision to assign prisoners "personal representatives" rather than lawyers, and to allow continued indefinite detention based on classified evidence, reflects a serious limitation in the new order that parallels the problems I've previously pointed out about the review system in Afghanistan.
During a recent trip to Afghanistan, my colleague Gabor Rona and I observed a set of detainee review board hearings, or DRBs. Despite the slightly different name, the new Periodic Review Boards, or PRBs, at Guantanamo sound strikingly similar. Like the PRBs, DRBs in Afghanistan allow prisoners there to appear before the board to claim that they're not "unlawful enemy belligerents," pose no national security threat, and should be set free. And like the PRBs, the prisoners in Afghanistan are assigned a "personal representative" to help them make their case.
Unfortunately, the "personal representatives" we saw at work in Afghanistan didn't seem to be representing much of anything. The hearings lasted about a half-hour and consisted of a military officer reading the charges against the detainee and vaguely summarizing the evidence against him. The government presented no witnesses to the events in question or to the detainee's dangerousness. In fact, the government presented no witnesses at all.
Although the personal representative was permitted to question the charges, challenge the evidence, and present witnesses in the prisoner's favor, he did nothing of the sort in the hearings we witnessed. A set of previous hearings observed by a consultant to Human Rights First in September were similar: neither the government nor the personal representative presented any witnesses, and, needless to say, there was no cross-examination. The personal representative barely questioned the government's case at all. Instead, he mostly asked the detainee whether he supported the Taliban, whether he would join Taliban forces upon his release, and what he would tell people in his village back home about how he'd been treated by U.S. forces. The hearings were hardly a robust examination of the evidence or even a minimally coherent risk assessment.
The new periodic review process the Administration has now established at Guantanamo is very similar, with a few key differences. For one thing, Gitmo prisoners are only allowed to appear before the board to make their case once every three years, as opposed to every six months in Afghanistan. (A paper review outside the detainee's presence is supposed to take place annually.) But at Gitmo, detainees will be allowed to have lawyers - if they can secure one at their own expense. That represents the Administration's acknowledgment of the fact that many of the detainees already have lawyers, since the US Supreme Court in Boumediene v. Bush ruled that detainees have a right to challenge their detention in federal court, and many defense lawyers volunteered to take on the Gitmo cases.
But it's significant that, unlike in the military commission trials, the US did not say that detainees are entitled to legal representation. Detainees are also not entitled to see all of the evidence against them. Even their representatives may in some cases only be entitled to a summary of the classified evidence, rather than the evidence itself. This makes the expertise of a lawyer, who knows how to work around those limitations in defense of a client, even more important.
As a practical matter, it would not have been very difficult for the U.S. to offer a handful of military lawyers to represent the approximately 86 or so Guantanamo prisoners that the new Executive Order applies to. But the administration appears to have made a calculated decision not to do that. Why? It can only be that it doesn't want to create the expectation that prisoners indefinitely detained by the United States under a law of war theory are entitled to legal representation.
Unfortunately, based on the performance of the non-lawyers I observed representing prisoners at the U.S.-run Bagram Air Base in Afghanistan, that amounts to a denial of due process for prisoners in indefinite U.S. detention.
In its Fact Sheet accompanying yesterday's executive order, the Administration announced its support for Additional Protocol II to the 1949 Geneva Conventions, which "sets out humane treatment standards and fair trial guarantees."
A basic element of a fair trial is the right to be represented by competent defense counsel and to confront the evidence being used against you. Unfortunately, the United States' current indefinite detention policy does not meet that minimum standard.
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