WHITHER GITMO DETAINEES?

Interview conducted by William Fisher

Brian J. Foley is a professor at Florida Coastal School of Law in Jacksonville. Recently we interviewed him about what should be done with prisoners detained at the U.S. Navy base at Guantanamo Bay, Cuba.

Q. The members of Congress who recently visited Guantanamo Bay seemed to be concerned about primarily about the treatment of detainees. Is this the main issue now?

A. The main issue is and always has been whether these people are in fact guilty of anything at all. Members of congress can satisfy themselves that prisoners can read the Koran, but what if those prisoners are innocent? Reading the Koran does not make up for their loss of freedom, and the lack of any process to prove their innocence.

Q. The DOD has set up what seems a very complex system for determining the guilt of detainees. Is there something wrong with the Army system?

A. Even if we assume good faith on the part of the Administration, then it’s trying to hold these people because it thinks they are dangerous but can’t prove it objectively. The slowness of the courts is undoubtedly part of their strategy. When it designed a hearing system, the Administration knew that prisoners were going to challenge it in court, and that everything would grind to a halt until a court decides, and then again until an appeals court decides, and yet again until the Supreme Court decides

During this process, the Administration can keep these men in prison, because it can argue that to let them out would endanger us. This is analogous to denying bail to a criminal defendant in our system.

If we were really concerned about the fairness and justice, the government could speed up the process by putting together a panel using the Uniform Code of Military Justice. Decisions would then be seen as proper.

Q. Are there specific problems with the Combat Status Review Panels (CSRPs), which determine whether someone is an enemy combatant, a POW or an innocent person?

A. The CSRPs provide the minimum process possible. For example, the rules include the presumption that the person is an enemy combatant. Also, the standard isn’t "beyond a reasonable doubt," as in our criminal justice system, but a mere "preponderance of the evidence " -- what lawyers generally quantify as "51 percent." The barest majority.

These tribunals are made up of US military officers who have loyalties to the military and their "Commander-in-Chief." Prisoners have no right to counsel – just some soldier who can help them along. That soldier is probably outranked by members of the tribunal. The tribunal can consider secret evidence that the prisoner can never see or even be told about by his military representative.

This violates our own due process rights to cross-examine and confront witnesses, and to have all evidence against you disclosed. The military officers conducting the hearing can consider any evidence they think is "reasonable." That includes hearsay evidence, and evidence and witnesses considered "reasonably available." It’s unlikely the tribunal would fly other people halfway around the world to testify for the prisoner.

Q. Are there specific problems with the "military tribunals"?

A. This is the second part of the justice system our government is creating. President Bush created these bodies out of whole cloth in November 2001. While they provide more legal process than the CSRPs, they’re still less reliable than hearings POWs would receive under the Uniform Code of Military Justice. That is something Congress should decide to do .

Military tribunals have a presumption of innocence, but like the CSRPs, they still allow secret evidence against the prisoners. So our regular system tilts toward the defendant, while the Gitmo system tilts in favor of the government.

Military tribunals come up short in other ways. For example, our Constitution provides the right to effective assistance of counsel, protection of the attorney-client privilege, military officers who are lawyers as counsel, the right to confront accusers, the right of compulsory process to bring before the tribunal any witnesses that the defendant needs to testify, and a jury trial. Our Constitution doesn’t allow evidence that was obtained by coercion to be used against a defendant. So there’s a question about whether that evidence is accurate. Accuracy is the heart of due process.

These protections do not apply to current detainees. The fate of these prisoners’ will be decided by military personnel and military "judges" with little or no legal training.

Another problem with the military tribunals is that prisoners’ appeals stay inside the Executive branch. When the Administration clarified the military tribunal rules in 2002, it also announced that it could hold prisoners who are found not guilty by the tribunals, if the President still thinks they are dangerous!

Q. Will we see challenges to these tribunals anytime soon?

A. Last summer, in the cases dealing with enemy combatants, the Supreme Court held that enemy aliens in Guantanamo may file habeas corpus petitions to challenge various aspects of their detention. The Court also noted that enemy combatants could be detained, but that some process would have to be implemented to determine these prisoners’ status and guilt. We can expect to see lower courts coming to varying decisions on whether particular aspects of the process are permissible or not. These will wend their way up to the Supreme Court. Meanwhile, the government can continue to hold these people.

If you give so little process toward answering this question, no one can reasonably trust the outcome. We need to use a system that can accurately determine whether each individual is dangerous. If they are being held indefinitely because we determine they are dangerous, then we should give them chances over time to show they are no longer a danger.

Q. Does the recent court ruling that prisoners can be tried by military tribunals change things?

A. Yes and no. It reversed the lower court opinion that was holding up at least one trial, and it streamlined the process by saying that the military tribunals, before a prisoner's trial, can fulfill the international law standard of determining whether the prisoner is an enemy combatant or POW. The court didn't address the problem that these tribunals can use secret evidence but indicated that challenges to secret evidence will have to be pursued by prisoners after they're convicted. But it probably didn't change things in the short run because the tribunals likely will be held up by an appeal of this case to the Supreme Court.