Guantanamo detainees appearing before the military tribunals that would decide their fate had little chance of receiving evenhanded hearings, an eight-month McClatchy Newspapers investigation found. At least 40 former Guantanamo detainees of the 66 interviewed had tribunal hearings, but none was able to submit testimony from witnesses outside the detention facility.
Former detainees singled this out as the most serious flaw in the operation of the combat status review tribunals.
In last week's landmark ruling granting detainees access to federal courts, the U.S. Supreme Court said that there was “considerable risk of error” in the tribunal's findings of fact and that detainees might held for “a generation or more” on the basis of error.
“The detainee has limited means to find or present evidence to challenge the government's case, does not have the assistance of counsel and may not be aware of the most critical allegations that the government relied upon to order his detention,” the court said. “His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay,” the ruling said.
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McClatchy's review of tribunal transcripts and interviews with former detainees and military defense attorneys also showed that the tribunals consistently failed to distinguish hard-core international terrorists from low-level fighters and innocents.
Although the court sharply criticized the tribunals, it stopped short of ruling them illegal.
One Afghan who McClatchy interviewed might have been cleared readily had the tribunal undertaken the most basic steps. Swatkhan Bahar had to beg for help from the three U.S. officers who presided over his tribunal during the summer of 2004.
U.S. authorities accused Bahar of helping Taliban forces attack U.S. soldiers, according to a transcript of the proceedings. Speak with someone from Afghanistan, Bahar pleaded, and you will find out who I am: an employee of the Afghan Interior Ministry in Khost and a friend of the Americans.
A Marine colonel said no witnesses were available from outside Guantanamo to testify on Bahar's behalf.
It took a McClatchy reporter only a couple of phone calls to find Mohammed Mustafa, who was the Afghan Interior Ministry's security chief for Khost from late 2001 to mid-2003. Mustafa confirmed much of Bahar's story: He said that a rival in the Afghan security services framed Bahar.
Bahar was at Guantanamo for more than four years. “When I asked the judges in the tribunal why I was still at Guantanamo, they just shrugged,” he said during an interview in Khost.
Of the 572 detainees who went through the tribunal process, only 38 were found to be “no longer enemy combatants” and released, said Capt. Lana Hampton, a spokeswoman for the Pentagon office that oversees the tribunals at Guantanamo.
Hampton said in an e-mail that “in some cases, requested witnesses could not be found; in other cases, witnesses who were located declined to participate. Because travel to Guantanamo can be difficult and costly, testimony was taken from the witnesses who were located and agreed to participate, and was provided to the CSRT (tribunal) via affidavits.”