I have sent letters to my Senators and Representative. I am still working to develop contacts within the Richardson campaign. I think we would be well served if he and the other so-called “second tier” Democratic Presidential hopefuls were to storm the gates of Guantanamo Bay. Because they are in Congress, Congressman Kucinich and Senator Biden have standing to inspect the prison and interview the prisoners.
Where today is our General Eisenhower? When Ike saw the horror of the Nazi death camps, he ordered that every American soldier and every German citizen be marched through them so that any denial of the Holocaust would have to contradict the actual experience of a million eyewitnesses. Many of our soldiers and many of the German citizens suffered nightmares for the rest of their lives about what they saw. It was an enormous human cost - so very small in comparison to the inhuman suffering caused by the Nazi horror.
The American horror is now spread around the world and we are, each and every one of us, entirely responsible for it. The Bush administration and those directly involved with the operation of Guantanamo Bay - the shining flagship of American torture camps worldwide - have not only the blood of their victims on their hands, but the sludge and tar with which they have defiled all of us, our flag, our Constitution, our immortal souls. They have made us all torturers - each and every one of us. Because we are the government, we are guilty by our acquiescence. When the gates of Guantanamo are finally thrown down, it is we who should be compelled to march through and look in horror upon what we have condoned.
And for speaking out against this horror, I harbor at least in the back of my mind, the fear of the knock on the door at night. It isn’t paranoia. It’s the Patriot Act. An American government that captures foreign citizens and tortures them for years on end without ever charging them or giving them a fair and public hearing, can just as easily do that to American citizens. Indeed, each of us may, under the Military Commissions Act, be declared an unlawful enemy combatant and be shipped off to a torture camp.
Don’t believe me? Ask yourself... if Blackwater mercenaries took you off the street tomorrow and declared you an “unlawful enemy combatant”, who would come to your rescue? We are no longer innocent until proven guilty. By these unconstitutional acts of the last Congress, signed into unconstitutional law by President Bush and unchallenged (indeed because of deft bureaucratic tactics, nearly unchallengeable) in court, we are now only innocent until we are accused. In such times, how would a Patriot act?
We Americans have been dilatory. We have be craven. We have been cowards to allow our government to do this. But I cannot go and storm the gates. I must ask those who hope to lead us to do so on my behalf. Alone, my voice will probably not convince them to do so. So I ask you to write your Congressional delegation and I ask you to write to hopefuls Richardson, Kucinich, Biden, and Gravel to storm the gates of America’s torture camps. Free the innocent. If there is any way left now to prosecute any prisoners who can reasonably be indicted - then by all means, let us fairly indict and fairly prosecute them.
But I fear we have gone to far and the torture we have visited upon those we hold who truly are guilty and dangerous to us, puts them beyond the reach of American Justice. They have already been subjected to too much American Injustice and for that cruel and unusual punishment, we probably have no choice but to set them free and only hope to watch them carefully enough to prevent any mischief they may try to start against us.
I asked how would a Patriot act. I am appending more transcription of the documents I received from Brent Mickum to show you exactly how a Military Commission acts. You can read it in the comments appended to this post.
Do I sound angry? If so, it is because I am angry at myself for not doing more and for not speaking out sooner. My true emotion is horror. This American nightmare has to end. We have become that which our greatest generation fought and died to defeat. Raise the alarm! America needs to wake up!
rbs
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(Executive Summary of the Seton Hall Report. Next comment will contain details about the Military Commissions)
REPORT ON GUANTANAMO DETAINEES
A Profile of 517 Detainees through Analysis of Department of Defense Data
By
Mark Denbeaux
Professor, Seton Hall University School of Law and
Counsel to two Guantanamo detainees
Joshua Denbeaux, Esq.
Denbeaux & Denbeaux
David Gratz, John Gregorek, Matthew Darby, Shana Edwards,
Shane Hartman, Daniel Mann and Helen Skinner
Students, Seton Hall University School of Law
THE GUANTANAMO DETAINEES: THE GOVERNMENT’S STORY
Professor Mark Denbeaux* and Joshua Denbeaux*
An interim report
EXECUTIVE SUMMARY
The media and public fascination with who is detained at Guantanamo and why has been fueled in large measure by the refusal of the Government, on the grounds of national security, to provide much information about the individuals and the charges against them. The information available to date has been anecdotal and erratic, drawn largely from interviews with the few detainees who have been released or from statements or court filings by their attorneys in the pending habeas corpus proceedings that the Government has not declared “classified.”
This Report is the first effort to provide a more detailed picture of who the Guantanamo detainees are, how they ended up there, and the purported bases for their enemy combatant designation. The data in this Report is based entirely upon the United States Government’s own
documents.
This Report provides a window into the Government’s success detaining only those that the President has called “the worst of the worst.”
Among the data revealed by this Report:
1. Fifty-five percent (55%) of the detainees are not determined to have committed any hostile acts against the United States or its coalition allies.
2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remaining
detainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitive
affiliation with either al Qaeda or the Taliban.
3. The Government has detained numerous persons based on mere affiliations with a large number of groups that in fact, are not on the Department of Homeland Security terrorist watchlist. Moreover, the nexus between such a detainee and such organizations varies considerably. Eight percent are detained because they are deemed “fighters for;” 30% considered “members of;” a
large majority – 60% -- are detained merely because they are “associated with” a group or groups the Government asserts are terrorist organizations. For 2% of the prisoners their nexus to any terrorist group is unidentified.
4. Only 5% of the detainees were captured by United States forces. 86% of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody.
* The authors are counsel for two detainees in Guantanamo. See, Combatant Status Review Board Letters, Release date January 2005, February 2005, March 2005,
April 2005 and the Final Release available at the Seton Hall Law School library, Newark, NJ.
This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the
United States at a time in which the United States offered large bounties for capture of suspected
enemies.
5. Finally, the population of persons deemed not to be enemy combatants – mostly
Uighers – are in fact accused of more serious allegations than a great many persons still deemed to
be enemy combatants.
rbs
(This is the Military Commissiones Act in action)
NO-HEARING HEARINGS
CSRT: THE MODERN HABEAS CORPUS?
AN ANALYSIS OF THE PROCEEDINGS OF THE GOVERNMENT’S COMBATANT STATUS REVIEW TRIBUNALS AT GUANTÁNAMO
By
Mark Denbeaux, Professor, Seton Hall University School of Law and
Counsel to two Guantanamo detainees
Joshua Denbeaux, Esq.
Denbeaux & Denbeaux
David Gratz, John Gregorek, Matthew Darby, Shana Edwards,
Shane Hartman, Daniel Mann, Megan Sassaman and Helen Skinner
Students, Seton Hall University School of Law
EXECUTIVE SUMMARY
In the wake of the Supreme Court’s decision that the United States Government must provide adequate procedures to assess the appropriateness of continued detention of individuals held by the Government at Guantánamo Bay, Cuba, the Department of
Defense established the Combatant Status Review Tribunals (“CSRT”) to perform this mission. This Report is the first comprehensive analysis of the CRST proceedings.
Like prior reports, it is based exclusively upon Defense Department documents. Most of these documents were released as a result of legal compulsion, either because of an Associated
Press Freedom of Information request or in compliance with orders issued by the United
States District Court in habeas corpus proceedings brought on behalf of detainees. Like
prior reports, “No Hearing Hearings” is limited by the information available.
The Report documents the following:
1. The Government did not produce any witnesses in any hearing and did not present any documentary evidence to the detainee prior to the hearing in 96% of the cases.
2. The only document that the detainee is always presented with is the summary of classified evidence, but the Tribunal characterized this summary before it as “conclusory” and not persuasive.
3. The detainee’s only knowledge of the reasons the Government considered him to be an enemy combatant was the summary of the evidence.
4. The Government’s classified evidence was always presumed to be reliable and valid.
5. In 48% of the cases, the Government also relied on unclassified evidence, but,
like the classified evidence, this unclassified evidence was almost always withheld from the detainee.
6. At least 55% of the detainees sought either to inspect the classified evidence or to present exculpatory evidence in the form of witnesses and/or documents.
a. All requests by detainees to inspect the classified evidence were denied.
b. All requests by detainees for witnesses not already detained in
Guantánamo were denied.
c. Requests by detainees for witnesses detained in Guantánamo were denied in 74% of the cases. In the remaining 26% of the cases, 22% of the detainees were permitted to call some detainee-witnesses and 4% were permitted to call all of the detainee-witnesses that they requested.
d. Among detainees that participated, requests by detainees to produce documentary evidence were denied in 60% of the cases. In 25% of the hearings, the detainees were permitted to produce all of their requested
documentary evidence; and in 15% of the hearings, the detainees were permitted to produce some of their documentary evidence.
7. The only documentary evidence that the detainees were allowed to produce was from family and friends.
8. Detainees did not always participate in their hearings. When considering all the hearings, 89% of the time no evidence was presented on behalf of the
detainee.
9. The Tribunal’s decision was made on the same day as the hearing in 81% of the cases.
10. The CSRT procedures recommended that the Government have an attorney present at the hearing; the same procedures deny the detainees any right to a
lawyer.
11. Instead of a lawyer, the detainee was assigned a “personal representative,” whose role, both in theory and practice, was minimal.
12. With respect to preparation for the hearing, in most cases, the personal representative met with the detainee only once (78%) for no more than 90 minutes (80%) only a week before the hearing (79%).
13. At the end of the hearing, the personal representative failed to exercise his right to comment on the decision in 98% of the cases,
a. During the hearing; the personal representative said nothing 12% of the time.
b. During the hearing; the personal representative did not make any substantive statements in 36% of the cases; and
c. In the 52% of the cases where the personal representative did make substantive comments, those comments sometimes advocated for the Government.
14. In three of the 102 CSRT returns reviewed, the Tribunal found the detainee to be not/no-longer an enemy combatant. In each case, the Defense Department
ordered a new Tribunal convened, and the detainee was then found to be an enemy combatant. In one instance, a detainee was found to no longer be an enemy combatant by two Tribunals, before a third Tribunal was convened which then found the detainee to be an enemy combatant.
15. When a detainee was initially found not/no-longer to be an enemy combatant:
a. The detainee was not told of his favorable decision;
b. There is no indication that the detainee was informed of or participated in the second (or third) hearings;
c. The record of the decision finding the detainee not/no-longer to be an enemy combatant is incomplete.
INTRODUCTION:
After the Supreme Court ruled on June 28, 2004 in Rasul v. Bush, 542 U.S. 466 (2004), and Hamdi v. Rumsfeld, 542 U.S. 507 (2004), that the Guantánamo detainees
were entitled to access to federal court through the writ of habeas corpus, the Defense Department established processes to review the status of all detainees, many of whom had been held without any proceeding for two and a half years. Within one month of
Rasul, the Defense Department created the “Combat Status Review Tribunal” (“CSRT”) and established a process for hearings before the CSRT. Each CSRT was composed of
three unidentified members of the military who presided over the hearings.
As soon as most of the CSRT hearings were completed, the Government informed the District Court in which the habeas proceedings were pending that, despite the Supreme Court’s ruling, no further judicial action was necessary because the detainees had been given CSRT review.
This Report analyzes the CSRT proceedings, comparing the hearing process that the detainees were promised with the process actually provided. The Report is based on
the records that the United States Government has produced for 393 of the 558 detainees who had CSRT hearings.
The most important documents in this record were produced by the Government in response to orders by United States District Judges that the Department of Defense
provide the entire record of the Combat Status Review Tribunal for review by counsel for at least 102 detainees. These are described as habeas-compelled “full CSRT returns.”
Without these documents, it would only be possible to review the process promised.
With the 102 “full CSRT returns,” this Report can also compare the process promised with the process provided.
The results of this review are startling. The process that was promised was modest at best. The process that was actually provided was far less than the written
procedures appear to require.
The detainees were denied any right to counsel. Instead, they were assigned a “personal representative” who advised each detainee that the personal representative was neither his lawyer nor his advocate, and that anything that the detainee said could be used against him. In contrast to the absence of any legal representative for the detainee, the Tribunal was required to have at least one lawyer and the Recorder (Prosecutor) was recommended to be a lawyer.
The assigned role of the personal representative was to assist the detainee to present his case. In practice, any assistance was extraordinarily limited. The records of meetings between detainees and their personal representatives indicate that in 78% of the cases, the personal representative met with the detainee only once. The meetings were as short as 10 minutes, and this includes time for translation. Some 13% of the meetings were 20 minutes or less, and more than half of the meetings lasted no more than an hour.
During this meeting, the detainee was told the following:
• The CSRT proceeding was his opportunity to contest the Government’s finding that he was an enemy combatant;
• The Government had already found the detainee to be an enemy
combatant at multiple levels of review;
• The Government’s finding rested upon classified evidence that the
detainee would not see; and
• The Tribunal must presume that the secret classified evidence was reliable and valid.
In the majority of the CSRT hearings, the Government rested on the presumption that the classified evidence was sufficient to establish that the detainee was an enemy combatant. The Government never called any witnesses and rarely adduced unclassified
evidence. In the majority of cases, the Government provided the detainee with no evidence, declassified or classified, which established that the detainee was an enemy combatant. Instead, the Government provided the detainee merely with what purported
to be a summary of the classified evidence. This summary was so conclusory that it precluded a meaningful response. The Government then relied on the presumption that the secret evidence was reliable and accurate.
In the minority of cases, the Government produced declassified evidence to the Tribunal. Such declassified evidence did not bear directly on the question at issue. It consisted of letters from the detainee’s family and friends asking for his release, portions
of habeas corpus petitions submitted by the detainee’s own lawyers on his behalf in
United States District Court, and publicly available records that did not mention the detainee by name. None of the declassified evidence introduced against any detainee contained any specific information about the Government’s basis for the detainee’s detention as an enemy combatant.
Detainees who participated in CSRT proceedings rarely were able to confront the Government evidence. The Government never called witnesses and did not typically
produce any unclassified evidence. When such evidence was presented to the Tribunal, it was not shown to the detainee 93% of the time. As for the ability of the detainees to produce evidence, only 11% of the detainees were allowed to introduce any evidence.
The promised CSRT process provided that detainees could call witnesses, but no witness
from outside Guantánamo ever appeared. The only witnesses the Government allowed detainees to call were other detainees. Therefore, the only witnesses that were allowed under the CSRT process were presumed enemy combatants testifying in favor of other presumed enemy combatants.
(There is a lot more to this report - I will send it to you on request - along with a whole lot more)
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