Global Policy Forum

By Jessica Azulay

As the US government continues to release detainees from its detention camps at Guantánamo Bay, Cuba, allegations of abuse continue to trickle out as well. For the more than 580 remaining prisoners, the Bush administration has set up Combatant Status Review Tribunals to determine whether each detainee will remain in detention or be sent to their home country, a process the Washington, DC-based Center for Constitutional Rights calls a "sham" and is challenging in court.

In the last week, the US released five Moroccans and four French citizens from the Guantánamo detention centers into the hands of their governments, reports the Associated Press. A lawyer for two of the French men told reporters that his clients described their time at the military prison in Guantánamo as "hell." Attorney Jacques Debray said Mourad Benchellali and Nizar Sassi told him they had concerns "about the interrogation techniques and medical experiments" employed at Guantánamo.

In the UK, authorities are investigating allegations of torture and abuse at the hands of US forces in the Guantánamo jail made by British citizens previously released from the base. The Independent reports that Foreign Office ministers have written to the Pentagon about allegations that US forces physically assaulted, sexually harassed and intimidated prisoners at gunpoint. The ministers have reportedly asked for video tapes that former detainees insist were filmed during assaults by a feared unit of guards called the Immediate Reaction Force.

On Wednesday, three British citizens who were formerly held at Guantánamo released a 115-page description of the abuses they say they endured while being held for two and a half years without charges. Their horrific and detailed testimony describes numerous allegations of torture, humiliation, and violation of rights. They say US forces forcibly injected them with unknown drugs, brutally physically assault them, sexually violated and humiliated them, kept them cages exposed to the sun and to snakes and scorpions, degraded their religion and restricted their religious practice, kept them in solitary detention and interrogated them for long periods of time, and coerced false confessions.

Even as allegations of torture and abuse at Guantánamo continue, hearings have begun for the prisoners still detained at the base. On Friday, the first Combatant Status Review Tribunals were held in front of US military officers. The Review Tribunals are not criminal trials. Instead, the express purpose of the Review Tribunals is to allow each detainee to try to persuade the military that he is not an "enemy combatant." The tribunals are the Bush administration's answer to the recent Rasul v. Bush decision, in which the Supreme Court ruled that all detainees must be given the chance to challenge their detentions in US courts.

However, the Center for Constitutional Rights (CCR), the leading advocate for the Guantánamo detainees, has slammed the process, saying the Review Tribunals do not offer a real chance for habeas corpus, the right of the detained to challenge the legality of their detention. CCR represents over 50 of the Guantánamo detainees and has taken the lead in getting other law firms involved to represent still more prisoners at the base.

On Monday, the Center, along with the DC-based law firm Keller & Heckman LPP, filed a request for an emergency stay to prevent their clients from being subject to the Combatant Status Review Tribunals. The law firms argued that their clients should first be granted access to their lawyers so they can be advised of their rights and any potential legal repercussions of appearing before the military panels.

However, on Tuesday a federal judge rejected the request. Judge Richard Leon did say, though, that statements made by detainees during the Review Tribunals could be excluded from civilian courts.

"The purpose of our filing is to assert that our clients have a clear right to counsel," said Brent Mickum, an attorney with Keller and Heckman, explaining that the right to a lawyer is a fundamental part of the right to meaningfully challenge the legality of one's detention. "That is particularly true when you have individuals whose English is limited and they do not understand their rights," continued Mickum. "We believe the government is ultimately trying to prevent [legitimate civilian] courts from exercising their jurisdiction and ever hearing the habeas cases."

Additionally, the firms are requesting they be granted full access to all of the detainees' medical records and that the detainees have access to independent physicians. According to a CCR press release, the request is a result of allegations and reports from released detainees, who have indicated that some of the remaining prisoners are in poor physical and mental health.

"Attorneys and family are especially concerned over the health and mental condition of Jamil El-Banna, who suffers from diabetes and allegedly has lost 70 to 80 pounds while incarcerated," reads the press release. "Testimony from released detainees indicates that Mr. El-Banna's health has deteriorated to such an extent that his health and mental stability are considered to be very much at risk."

Attorney Joseph Margulies boiled the Center's stance down to principle. "More than anything else," he said, "Rasul stands for the essential proposition that there is no prison beyond the law. These tribunals are just another attempt to keep Guantánamo a lawless enclave." Margulies is a cooperating attorney for the Center for Constitutional Rights and was lead counsel in Rasul v. Bush.

Marguiles' colleague, Jeff Fogel, Legal Director at CCR, agreed. "The so-called 'Personal Representatives' assigned to [the detainees] have no legal background and are not advocates: they are required to pass on any information gleaned from a detainee during their conversations," said Fogel, referring to the military officers appointed to assist the prisoners in navigating the Review process. "These tribunals are a sham," he continued. "The detainees… have no right to meaningfully contest any classified evidence against them, and no meaningful way to call any witnesses in their favor."

Indeed the right to counsel for the prisoners seems far from guaranteed. On Friday the Pentagon filed papers in federal court, asserting that the detainees at Guantánamo do not have the right to lawyers, according to National Public Radio. The 32-page reported argues that only US citizens have the constitutional right to counsel and that although the US Supreme Court ruled the non-citizen prisoners at Guantánamo must have access to US courts to challenge their detentions, the ruling did not technically grant them the right to a lawyer.

CCR attorneys are also concerned about the type of evidence that will be allowed at the hearings. "The evidence to be used in these tribunals is based on two and a half years of coercive interrogations," said CCR Attorney Rachel Meeropol. "Contrary to US and international law, the tribunals are free to rely on hearsay and false confessions given under torture."

While challenging the Combatant Status Review Tribunals, CCR and other firms are also busy filing numerous lawsuits in US courts, challenging the continued imprisonment of their clients. There is no known date for hearings on those cases.

Additionally, the Bush administration has designated about fifteen Guantánamo detainees to face criminal charges in front of special military tribunals, themselves highly controversial. Those are expected to get under way later this month.