
Above and beyond the legal status of Guantanamo Bay and the possible torture of its detainees, of key interest is how many Guantanamo prisoners are actually a threat to the United States, and what the government is doing to determine who is dangerous and who isn't. Many commentators and politicians seem at peace with the possibility that, in the conduct of an aggressive "war on terror," a few innocent folks may be wearing orange jumpsuits in Cuba. But the idea of an American prison camp full, or even half full, of innocent people with no hope for release is rightly considered abhorrent. The United States must have a reliable method of sorting the guilty from the not, the dangerous from the innocent, else we lose our Constitutional moorings entirely.
The Supreme Court certainly thought so when it ruled against the Department of Defense in the
Hamdi case, directing the government to provide access to federal court for Guantanamo detainees. "[D]ue process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," the Court said. DOD responded by creating the
Combatant Status Review Tribunal (CSRT), a formal review that, according to the Deputy Secretary of Defense, is "a fact-based proceeding, whether the individuals detained by the Department of Defense at the U.S. Naval Base Guantanamo Bay, Cuba, are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation." The degree to which the CSRT effectively fulfills the requirements set down by the Supreme Court in
Hamdi is important when considering whether or not the Bush administration is in compliance with the Court's decision.
Lead Gauntanamo Counsel Captain Pat McCarthy appeared today on NPR's Fresh Air to defend the U.S. military's capture and handling of Guantanamo prisoners. The factual claims offered by the government's lead Gitmo prosecutor were numerous and deserve careful response, but one error of fact committed by Captain McCarthy is relevant to the battle over CSRTs, a battle which more and more resembles a proxy war between the Executive and Judicial branches. NPR's Dave Davies asked Captain McCarthy about weaknesses in the CSRT from the point of view of detainees, and in particular about questions raised by
the Seton Hall study, which argues that the review process created by the Pentagon in response to
Hamdi does not meet the Supreme Court's requirements, and further alleges that most Guantanamo detainees were captured not on the battlefield of Afghanistan, but by Northern Alliance forces, as well as in Pakistan as a result of tips from local residents-- tips which were rewarded with up to five thousand dollars in cash. (The Seton Hall study, the first comprehensive examination of all publicly available data on Gitmo detainee treatment, has become the chief thorn in the Pentagon's side when it comes to the battle over Guantanamo.) Captain McCarthy responds by noting that the Seton Hall study was based on unclassified information, and refers to a "West Point counter-study" commissioned in order to
rebut the Seton Hall report. McCarthy says that the "West Point" study is more reliable because it was "a government study," and that it drew from classified sources, which the Seton Hall study did not.
Captain McCarthy is wrong. First, the study was authored not by West Point, but by the
Center for Combatting Terrorism (CTC), an independent research center hosted by the Social Sciences Department of the U.S. Military Academy at West Point. In other words, the
CTC report to which Captain McCarthy refers was commissioned by the government, but not authored by the government. CTC Director Joseph Felter himself told the Times that his report was conducted without Pentagon supervision. Second, the authors at the CTC did not have access to classified sources, as Captain McCarthy asserts. The CTC report was primarily a methodological critique of the Seton Hall report, and was based on the exact same body of unclassified documents. While the CTC report does not constitute an official statement by the government, it nevertheless is regarded by the Pentagon, according to the New York Times, as
a key salvo in the public relations battle over Gitmo. In fact, the report's statement that it analyzed the threat level of Guantanamo detainees by using "the extent of one's involvement, knowledge, skill-sets, social connectivity and commitment to furthering violent Jihad" may constitute an attempt to short-circuit criticism of the CSRT process by, in effect, conducting public mini-trials.
But possibly of even greater note is Captain McCarthy's admission that the real nature of the Combatant Status Review Tribunal is that of "a process by which the initial battlefield determination of enemy combatancy is confirmed. It doesn't actually determine that at individual is an enemy combatant, it confirms that the individual is an enemy combatant." Captain McCarthy's characterization of the purpose of the CSRT is in direct contradiction with the Supreme Court's decision and with the
implementing directive of the Department of Defense. In other words, the government's lead attorney at Guantanamo Bay appears to have publicly admitted that the Combatant Status Review Tribunal is nothing more than a judicial rubber stamp.