Unlike a trial under the US justice system the accused are not allowed to discuss their cases in private with their attorneys. In fact, there have been terrific difficulties discussing anything at all.
Sundel said that although the commission is supposed to be responsible for getting translators he was told to find his own. Then the government held up her clearance so he had to find another, who didn't work out. A week ago, he won clearance for an interim translator.
"I've operated in courts martial, federal courts and one international tribunal, and this is the only hearing I've entered with not even a clue as to what was going to take place," he said.
And, if the problems with obtaining clearance for the translators was not enough, according to this story, the US is playing games over paying the translators.
The two tribunals to determine combatant status
Donald Rumsfeld shocked many when he announced, in late 2001, that the prisoners captured during the invasion of Afghanistan would not be considered POWs. He said that they would be treated in a manner consistent to the spirit of the Geneva Convention, but that they would not be afforded the protections of the Geneva Convention.
The Geneva Convention says how a captor is to treat combatants, captured on the battlefield, with weapons, if there are doubts that they really qualify as POWs. The Captor is supposed to hold a tribunal, for each combatant whose status is in question. The proceedings of the tribunal are made public, so the rest of the World can see that the occupying power is conducting its occupation in as fair and humane a way as possible. The captive has a right to speak. The captive has a right to hear the evidence -- if any against them.
Up until three weeks ago none of the Guantanamo detainees had had any kind of public review of their status. Up until three weeks ago none of the Guantanamo detainees had had any kind of opportunity to hear the evidence against them.
The tribunals to give each detainee an annual review
There has been little public attention paid to the situation of the Guantanamo detainees. But there was enough criticism that the USA announced that, about four months ago, that the Guantanamo detainees would start to have an annual public reviews of their status, where it would be determined if the US still needed to detain them.
None of these annual reviews has yet to take place.
The determination as to whether those captured in Afghanistan were 'unlawful combatants'
Under the Geneva Convention these prisoners should have had a tribunal to determine whether they should be treated as POW, before they ever left Afghanistan. Without a determination how did they know that the detainees were not innocent bystanders? Falsely accused? Or whether they should really have been treated as POWs?
The Bush administration has detained people as illegal combatants as if they would never have to answer for their actions. They seem to have broadly defined all of Afghanistan as a battlefield, and have felt entitled to seize anyone there. And, hubris seems to have made them go too far. They captured and detained two American citizens, on US soil, and held them too as "unlawful combatants".
This decision was subject to criticism. If they had evidence against them, why weren't they being charged under US law? Why weren't they allowed to see a lawyer?
One consequence of the detention of Hamdi and Padilla has been that the Supreme Court ruled that the detainees are entitled to contest their detention in US courts. Some have argued that the DoD finally instituted the tribunals to review the status of the detainees solely so they could establish that they had legal jurisdiction over their detention, and not an unpredictable US-based civil court.
Thirty one detainees
have had their detention considered.
My impression is that the tribunals are not only years overdue, but they are being conducted in a very unprofessional manner. I feel quite critical of the coverage as well.
According to the Army spokemen these tribunals are all held in public. But the press reports were saying that only some of them were held in public. My reading of the various press reports was that they were public only in theory. The press weren't at some of the tribunals because they were not advised of the time, and were not admitted to the base.
The tribunals are held in a 10 foot by 20 foot trailer. Why? This means that, with the three officers presiding over the tribunal, the detainee, his "representative", a translator, there is only room for three members of the press.
The detainees aren't allowed lawyers, so each has a military officer appointed as his representative.
The detainees are anonymous. The press is not informed of the true names of the detainees during their tribunal. The US authorities has tried to keep the identities of the detainees private.
Approximately half of the detainee's tribunals are held without the detainee being present. This is one of the areas where the press coverage has been very weak. The tribunal of one of the detainees who stood before the tribunal had a 45 adjournment. The press report said that the tribunal had already been underway for some time when someone realized that the detainee hadn't signed some kind of document first. Apparently the detainees don't get to appear in public if they don't sign the document.
So, what the heck does the document say? The dozen or more detainees who the DoD spokemen said "did not choose" to appear before their tribunals -- did their refusal merely amount to an unwillingness to sign this mystery document?
So, what the heck does the document say?
Is it some kind of release, some kind of "cover your butt" device, dreamed up by military lawyers who know they have no legal authority over the detainees? Does it say that the detainee will voluntarily accept the decision of the tribunal, and stay in Guantanamo, of their own free will, if the tribunal determines their release would represent a threat to US national security? Does the document say they will not sue the US government for unlawful detention if they are released?
I am going to put interesting, related links at the end here.