Reporters Offered Look Inside Combatant Status Review Tribunals
By Kathleen T. Rhem
American Forces Press Service
NAVAL BASE GUANTANAMO BAY, Cuba, Aug. 29, 2004 -- As the world's attention was
focused on the first hearings in war-crimes trials against four enemy
combatants here this week, another type of proceeding was going on elsewhere on
the base that ultimately will involve all 585 detainees held here.
DoD is convening Combatant Status Review Tribunals within the Camp Delta prison
complex to determine individually if detainees are properly classified as
illegal combatants. Roughly 40 detainees have gone through hearings, and the
process is nearly completed for at least 14 of them.
Media visiting Guantanamo Bay this week to witness the first military-
commission hearings were offered the chance to witness first-hand one of the
combatant-status tribunals. Ground rules for coverage forbid identifying any
participants by name.
After being cleared and escorted through several layers of security, visitors
arrive at the pre-fabricated building that houses the Office of Administrative
Review for Detained Enemy Combatants Forward. OARDEC is a Washington office set
up under the purview of Navy Secretary Gordon England to make the combatant-
status review process possible.
In an interview room, officials explained, the detainees meet with a personal
representative, a military officer assigned to assist them through the process.
In the interview room, detainees are shackled, and a guard sits outside the
door.
Detainee participation in the process has run the gamut from crumpling up the
documents presented to asking animatedly to help prepare their defense. No
detainees have been hostile to their personal representative, but some have
refused to participate, the officials said.
The room is small, brightly lit, with a light-blue carpet and lightly colored
paneled walls. "We wanted (the detainees) to understand that this is a
different process," an official said. "This is something new."
The personal representatives are obligated to present any unclassified evidence
to the detainee and explain there is no expectation of confidentiality in the
process. However, interrogators or intelligence personnel have no access to
information obtained in the process, and guards don't enter the room, the
officials stressed repeatedly.
Following is a description of an actual hearing as observed by a reporter
visiting Guantanamo. The tribunal described here happened on Aug. 25 and was
the 36th that has occurred.
The detainee was already in the room when the panel members entered. He showed
little emotion and made few movements. The man had a long, dark beard, close-
cropped hair and wore a black crocheted skullcap. He wore a bright orange
short-sleeved shirt and pants that resembled hospital scrubs. He was handcuffed
and wore leg irons. The leg manacles were secured to a ring in the floor with a
padlock.
Also in the room were an interpreter, in casual civilian clothing and seated
next to the detainee; a court reporter; a recorder, an Army major; and the
detainee's personal representative, an Air Force major. The three panel members
filed into the room and took their seats at a table across the front of the
room. They included an Air Force colonel, an Air Force lieutenant colonel, and
a Navy commander. None of the military members in the room had nametags on
their uniforms.
Two media representatives sat just inside the door, about five to six feet from
the detainee. Directly behind the panel members was a large one-way mirror.
Several OARDEC Forward officials were watching from the next room.
From the hallway, the sound of chains clanking as other detainees were being
moved was clearly audible.
The detainee was advised of his rights to testify or present evidence if he
chooses and of his right to decline these things. Then he was told of the
evidence collected against him.
"(Name omitted) served with the Taliban, trained on the Kalashnikov rifle, and
surrendered to General Dostrum's forces in Afghanistan. At that time he was
carrying a Kalashnikov rifle," the Air Force colonel said.
The recorder then said there was no further unclassified evidence to submit and
requested a closed hearing to present classified evidence. He also explained
the detainee had requested three witnesses be brought forward to testify that
he was forcibly taken from his family and forced to join the Taliban.
Due to the "limited scope" of the tribunal proceeding, the board president
explained, how or why the individual joined the Taliban is not a consideration.
"The request for witnesses is denied," he said.
Next the detainee was given a chance to make a statement on his own behalf. He
chose to make his statement under oath. He was unable to raise his right hand
because of the chains, but swore to Allah to tell the truth.
"They came to my house and took me by force. I joined the Taliban by force, not
by my own choice," he said, through the interpreter. "Everybody in Afghanistan
knows that if the government asks you, you can't say no."
He explained that the Taliban was collecting people from all over Afghanistan
to fight the forces of Gen. Abdul Rashid Dostrum, an ethnic Uzbek rebel
commander. The detainee offered to go back to Afghanistan with the tribunal
members to find people who would verify his story. He also explained he comes
from a very poor area and couldn't leave his home and family to flee from the
Taliban.
"I could not leave the area and leave the house and family there," he said.
"That's all I'm going to say. I said this under oath; that is the truth."
Through questions asked by the personal representative, the tribunal panel
learned the man had no ammunition when he was captured and had been held under
guard the whole time he was with the Taliban forces.
Further questioning by the panel members revealed that he underwent four days
of military training, that he never actually fought for the Taliban, and was
never assigned any military duties in the month he was held by Taliban forces
at a compound in Konduz. The tribunal members also learned the man was married
and had six children.
The panel members then explained to the man that he would be notified of the
tribunal results. If he is found to not be an enemy combatant, he will be
returned to his home country. Should he be found to be correctly classified as
an enemy combatant, he will then be eligible to go through an annual review
board at a later date to determine if he is still a threat to the United
States.
The panel and media observers then left the room. Officials said the panel
members immediately would hold a closed hearing to receive the classified
evidence and then vote on whether they thought the detainee was an enemy
combatant.
The officials explained the detainee's request for witnesses was denied because
what they would have testified on -- that he was compelled by force to join the
Taliban -- would not be germane to the proceedings. The definition of enemy
combatant "does not address consent or intent," an official explained.
Witnesses who could testify that a detainee was forced to join the Taliban
could be relevant to the upcoming annual review board, the official said.
He admitted it's hard to watch in cases like this, where the detainee says he
was taken from his home and family by force and forced to go with the Taliban.
"It's gut-wrenching," the official said. "But our job at this juncture is just
to answer this one question. And we want to do it what we call PRF -- proper,
right and fair – and make fact-based decisions," he said.
Other requests for witnesses are being granted. Another detainee was called as
a witness in one instance, and in another instance officials are working to
find two witnesses a detainee requested from outside Guantanamo Bay. In other
cases, the panel members have called in intelligence experts to explain the
significance of a detainee's actions.
After the panel votes, the recorder prepares a record that is reviewed by a
legal adviser here and then a legal adviser in Washington before being
presented to the convening authority, Navy Rear Adm. James McGarrah, for final
approval. Officials don't consider the process closed until the convening
authority approves the results.
Of the 36 tribunals held up until the tribunal described above, 24 detainees
participated and 12 tribunals were held without the detainee being present.
Reports of 26 proceedings had been completed and sent to Washington for further
review, and the convening authority has approved 14. All 14 were found to have
been properly classified as enemy combatants.
Officials said they plan to begin notifying the individual detainees of these
results within the next week. Part of that process will be to also notify the
detainees of their rights to begin preparing a case to present to the upcoming
annual review boards.
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