Under detailed questioning by a federal judge, government lawyers asserted Wednesday the U.S. military can hold foreigners indefinitely as enemy combatants at Guantanamo Bay, Cuba, even if they aided terrorists unintentionally and never fought the United States.
Could a “little old lady in Switzerland” who sent a check to an orphanage in Afghanistan be taken into custody if unbeknownst to her some of her donation was passed to al-Qaida terrorists? asked U.S. District Judge Joyce Hens Green.
“She could,” replied Deputy Associate Attorney General Brian Boyle. “Someone’s intention is clearly not a factor that would disable detention.” It would be up to a newly established military review panel to decide whether to believe her and release her.
Boyle said the military can pick any foreigner who provides support to terrorists or might know of their plans. And the foreigners held on the U.S. naval base in Cuba “have no constitutional rights enforceable in this court,” Boyle told the judge.
“That’s really shocking,” Thomas B. Wilner, attorney for 12 Kuwaiti detainees, told reporters after Green’s hearing. “People throughout the world will fear the United States is asserting the power to pick up little old ladies and men who made a mistake.”
Green presided over an initial skirmish in what promises to be a long battle to flesh out the meaning of the Supreme Court’s historic June 28 ruling that the Guantanamo prisoners can ask U.S. courts to see to it that they have a proceeding to challenge detention.
In an effort to streamline the proceedings, Green heard arguments in 12 cases involving 54 detainees. A colleague, District Judge Robert J. Leon, who declined to have his cases coordinated with the others at this stage, will hear almost identical arguments over two cases involving five other detainees on Thursday.
Attorney: current process inadequate
The government has asked the judges to throw out the cases. Boyle said combatant status review tribunals, or CSRTs, set up by the U.S. military since the Supreme Court decision, and a subsequent annual administrative review by the military provide “more than sufficient due process” to satisfy the high court.
Wilner and other attorneys for detainees called the CSRT process inadequate. They said the panels, which consist of three military officers, have orders to presume the government’s evidence is accurate, accept statements given under torture and don’t allow the detainee to have a lawyer or see secret evidence against him.
“The world is waiting to see if American justice will work ... whether these men will see their day in court,” Wilner told Green. He said that 440 of the 550 detainees have been through the process and only one has been declared a noncombatant and released even though the government has charged only a few with crimes.
Green asked how the government defined an enemy combatant who aided terrorists or Afghanistan’s now-toppled Taliban regime.
“It is not limited to individuals who carried a weapon and shot at American troops,” Boyle replied. They don’t have to be on the front lines; they can be strategic advisers, intelligence informants, or supply workers including cooks, he said.
Green asked if a hypothetical resident of England who teaches English to the son of an al-Qaida leader could be detained. Boyle said he could because “al-Qaida could be trying to learn English to stage attacks there,” and he compared that aid to “those shipping bullets to the front.” Some detainees have been picked up in Bosnia and others in Africa.
'Where is the battlefield?'
Noting the Supreme Court said detention was to keep combatants from returning to the battlefield, Green asked, “What and where is the battlefield the U.S. military is trying to detain the prisoners from returning to? Africa? London?”
Boyle: “The conflict with al-Qaida has a global reach.”
Green asked if detainees are told how long they might be imprisoned. “When will this end?” she asked. “Can hostilities last as long as Muslim fundamentalists vow attacks on the United States?”
Boyle replied that was “a question for the president,” not judges.
Attorneys for the detainees asked Green to deny the government motion to dismiss the cases, to declare the CSRT panels invalid for lack of due process, to require the government to justify detentions in District Court under standard U.S. court rules or in some other process overseen by the federal courts and to order that Guantanamo conditions meet Geneva Convention standards.