New York Times
May 15, 2007
By William Glaberson
WASHINGTON, May 14 — The military system of determining whether detainees are properly held at Guantánamo Bay, Cuba, includes an unusual practice: If Pentagon officials disagree with the result of a hearing, they order a second one, or even a third, until they approve of the finding.
These “do-overs,” as some critics call them, are among the most controversial parts of the military’s system of determining whether detainees are enemy combatants, and the fairness of the repeat hearings is at the center of a pivotal federal appeals court case.
On Tuesday, the United States Court of Appeals for the District of Columbia Circuit begins consideration of the first of what are expected to be scores of challenges to the military panels’ decisions that detainees are enemy combatants and are properly held.
The case, involving eight detainees, is the first under a 2005 law that permits a limited review of the panels’ decisions. The repeat hearings have emerged as a major flashpoint, with lawyers for the government and the detainees offering the court sharply different interpretations of their significance, legal filings and interviews show.
For both sides, the dispute crystallizes the larger questions now facing the courts over how much leeway the appeals court judges have to review the decisions of the hearing panels.
The 2005 law said the court was largely limited to determining whether the military had followed its own procedures in determining a detainee’s status. But the lawyers for the detainees are pressing to get the court to consider the basic fairness of the procedure itself.
Detainees’ lawyers say the issue of the repeated hearings offers the starkest proof that the Pentagon set up a system of military tribunals not to find the truth about the detainees but to ratify its own conclusion that the military had seized the right people.
“When you have a proceeding that comes up with the ‘wrong answer,’ ” said P. Sabin Willett, one of the detainees’ lawyers, “in this country we don’t keep sending it back to a tribunal until they come up with the ‘right answer.’ And we don’t do it in secret, and that’s what happened here.”
Mr. Willett is to argue before the appeals court on Tuesday.
Government lawyers say critics are wrong to compare the wartime system in Guantánamo, known as combatant status review tribunals, or C.S.R.T.’s, to the civilian legal system, which gives defendants extensive rights.
“This is just one of many areas,” a government brief said, “where it is inappropriate to compare C.S.R.T. proceedings with background principles that stem from domestic criminal law.”
Another aspect to the case in the appeals court that has caused public debate involves the government’s request that the court tighten restrictions on lawyers for the detainees. One proposal would have limited the number of visits the lawyers could make to Guantánamo, a request that the Justice Department withdrew Friday.
The practice of repeating some of the hearings is shrouded in secrecy. It first came to public attention in November, when a report by Seton Hall University Law School documented that “at least three detainees were initially found not to be enemy combatants” but were then reclassified as enemy combatants after a new hearing.
Reviewing records of 102 hearings that were obtained from the government through lawsuits, the report’s authors found that “at least one detainee, after his first and second tribunals unanimously determined him not to be an enemy combatant, had yet a third tribunal” that then classified him as an enemy combatant. About 380 men are now detained at Guantánamo.
Military officials have not said in how many cases such hearings were repeated.
A Pentagon spokesman, Lt. Cmdr. Chito Peppler of the Navy, acknowledged that some decisions had reversed earlier findings that detainees were not enemy combatants.
At the same time, Commander Peppler said, after reconsideration in Washington, some detainees benefited from tribunal hearings that were repeated and that reclassified them from enemy combatant to “no longer enemy combatant,” making them eligible for release.
Commander Peppler disputed the way the detainees’ lawyers described the repeat hearings. He said multiple hearings for a single detainee were part of the process. Under Defense Department rules, he said, the hearing process is not finished until a Pentagon official “completes final review and approval of the decisions of the tribunals.”
The combatant status review process was initiated in a July 7, 2004, memorandum by Paul D. Wolfowitz, then the deputy secretary of defense. He acted after a Supreme Court decision that June suggested that detainees were entitled to a “fair opportunity to rebut the government’s factual assertions before a neutral decision maker.”
As set up by the Pentagon, the tribunals do not permit detainees to have lawyers at the hearings or to see much of the evidence against them.
When asked about the detainees’ lawyers’ assertion that the tribunal process was not fair, a Justice Department spokesman, Erik Ablin, said “more process has been afforded to the detainees than ever provided to enemy combatants in the history of armed conflict.”
Critics of the Bush administration’s detention policies argue that the unusual and indefinite detentions at Guantánamo raise new questions about the extent of the government’s war powers.
Eric M. Freedman, a law professor at Hofstra University who has consulted with lawyers for several detainees, said the repeated hearings were a symptom of the flaws in the military hearings. “The system is designed,” Mr. Freedman said, “to validate the holding of everyone they are now holding.”
Because much of the evidence in the combatant status hearings is classified and much of the process occurs behind closed doors, little is known about the repeat hearings.
One e-mail message from a Pentagon official, declassified last month in a court case, shows that the official, whose name remains classified, ordered a new hearing after a detainee had been determined not to be an enemy combatant. The e-mail message, apparently from early 2005, noted that other detainees whose circumstances were similar had been declared properly held.
The official wrote that “inconsistencies will not cast a favorable light” on the hearing process or the Pentagon office in charge of the combatant status review system, the Office for the Administrative Review of the Detention of Enemy Combatants. After a new hearing, according to a court document, the detainee was reclassified as an enemy combatant. He is still at Guantánamo.
Detainees’ lawyers say that in recent months they have learned of other cases, beyond the three identified in the Seton Hall report last year, that might have involved repeated hearings.
This month, Susan Baker Manning, a lawyer for seven detainees involved in the current appeals court case, received a package of information from the government about the combatant status hearing of one of the seven. At the bottom of a Pentagon memorandum dated Jan. 14, 2005, there was a note that said her client had first been determined not to be an enemy combatant. But later, the notation continued, it was “ultimately determined that the detainee is an enemy combatant.”
Ms. Manning’s client, Hammad Memet, now 29, has been at Guantánamo for more than five years.