Inside a Guantanamo Detainee Hearing

A reporter from the BBC reports here on his observation of a hearing conducted by an Administrative Review Board for one of the detainees held by the U.S. at Guantanamo Bay. As I have discussed in the past, elements of the U.S. detention policy, including its process for reviewing the status of detainees is being challenged in U.S. Courts.

This is the famously anti-American BBC, after all, so the tone of the report is certainly critical of the U.S. and sympathetic toward the detainee. Still, it is still worth reading. Some highlights:

Describing the Administrative Review Board

Three military officers sat on the board. None of them were lawyers.

Their job, as they described it, was to review the evidence and come to a recommendation as to whether the detainee constituted a continued threat to the US and should be further detained, or whether he should be transferred to his home country, or released.

Procedural Aspects of Hearing

At the detainee’s side was an “Assisting Military Officer”. His role was to assist the detainee in presenting his case, but he appeared well short of legal representation.

Also present was a “Designated Military Officer”, whose role was to present the evidence. He did not resemble a prosecutor. There was no adversarial argument.

Use of Classified Evidence

The officers went into a classified session during which they would hear secret evidence.
And the detainee would never know what secret evidence against him existed.

Final Observations

We were struck by the cursory nature of the questioning, and the absence of an attempt to reconcile conflicting claims as to what the young, sullen detainee had actually done.

One of the problems with the BBC reporters’ implicit criticisms, of course, is that the hearing he observed (as he admits) is not supposed to be a legal hearing to determine innocence or guilt. The ARB, like the Combatant Status Review Tribunals, are supposed to make basic administrative determinations. Only the military commissions (being challenged as I discussed here) are anything like a criminal trial in that they will adjudge guilt and exact punishment. So it is not shocking that detainees have no lawyers, that none of the board members are lawyers, and that secret evidence is being used. Non-POW detainees in previous U.S. military conflicts were unlikely to have received any better treatment. Nor would other countries have acted differently in their own conflicts (just ask those Algerians detained by French authorities during the Algerian war). And few if any of them ever managed to get the type of treaty, international law, or constitutional arguments that the Guantanamo detainees have made before a federal court (As I discuss here).

This is not to say, however, that the circumstances of this current war might not require new standards and new methods. In the past, the enemy government would protect the rights of its nationals being detained by U.S. authorities (essentially through its reciprocal treatment of U.S. detainees) and peace would result in the exchange and release of prisoners. But there is no official “enemy” government here and there is no one to make peace with or even negotiate with. So perhaps the situation may call for new measures to deal with this reality. I am certainly open to this view.

But critics have rarely been tempered in their denunciation of the Guantanamo Bay procedures preferring instead to declare the whole thing “lawless.” These critics need to remember that their efforts to apply civilian legal processes (the idea of due process, the right to a hearing, legal representation, etc) to the detention of enemy combatants in the war on terror represents a departure, and not conformity with, the traditional understanding of how the military handles wartime detentions of non-POWs. Even the classification of POWs or the mistreatment of POWs has rarely been the subject of civilian court review. Such a departure from tradition and modification of the laws of war might be justified given the unusual circumstances of the war on terror, but it might not be. (Indeed, as Kenneth Anderson points out here, many of the groups claiming the right to “write” the new laws of war are themselves self-interested advocacy groups who don’t have any more authority, and probably less, than the U.S. military.)

This is why I view many of the issues surrounding the Guantanamo detentions less as a legal question than a difficult question of policy. Introducing civilian judicial review of detention of foreign combatants, POWs or not, is a remarkable shift in U.S. jurisprudence and our understanding of the role of federal courts in supervising the military. It may be the right thing to do given the unusual nature of this war, but I think it is a much more difficult question than critics have suggested.