By Jerry Crimmins
Law Bulletin staff writer
(Posted with permission from the Chicago Daily Law Bulletin)
A lawyer says that federal officials applied an old adage after at least three Guantanamo Bay detainees were found not to be illegal enemy combatants: If at first you don't succeed, try, try again.
Military hearing officers found in 2004 that three inmates at the Guantanamo Bay Naval Base in Cuba were not properly designated ''enemy combatants,'' but the government has continued to hold them, according to various lawyers.
Government records show that after the three detainees were initially cleared in hearings known as Combat Status Review Tribunals in 2004, higher authorities ordered the hearings reopened.
After what officials characterize as new evidence was presented to military hearing officers, the three were found to be valid enemy combatants.
In one of those cases, according to a study by Seton Hall University School of Law, the detainee was cleared twice by CSRT hearing officers, but higher authorities persisted and he was declared a combatant on the third attempt.
Chicago attorney H. Candace Gorman represents one of the three detainees, Abdullah H.A. Al-Ghizzawi, an Arab who was seized in Afghanistan in late 2001 or early 2002.
Gorman said she was stunned to discover that her client, whom she volunteered to represent pro bono, initially had been cleared in 2004.
According to government records, ''On 24 November 2004, a Tribunal unanimously determined that the detainee was not properly designated as an enemy combatant.''
In an online posting, Gorman wrote, ''Why the hell has Mr. Al-Ghizzawi been held at Guantanamo for almost five years, dying of some kind of liver disease, when there is no evidence that he is an enemy combatant?'' Based on pronouncements by U.S. officials, there was no reason for Gorman to anticipate that there would be two hearings for her client.
In 2005, then-Secretary of the Navy Gordon England stated: ''The CSRT is a one-time review to determine if a person, a detainee, is or is not an enemy combatant.''
Rear Admiral James M. McGarrah , director of the Office of the Administrative Review of the Detention of Enemy Combatants, told the U.S. Senate Judiciary Committee in 2005: ''The CSRT is a one-time process.''
But in its own regulations, it turns out the government does have the ability to hold apparently any number of tribunal hearings for any Guantanamo detainee until the highest authorities are satisfied.
Paragraph 8 on page 9 of a document entitled ''Combat Status Review Tribunal Process'' states that the director of the Office of the Administrative Review of the Detention of Enemy Combatants, currently McGarrah, ''may approve the [Tribunal] decision … or return the record to the Tribunal for further proceedings.''
Gorman says that her outrage at this process extended beyond the holding of two different hearings with two different outcomes for her client. She says that the government claimed to have secret new evidence against Al-Ghizzawi to substantiate the finding by the second tribunal that he was an enemy combatant.
But that evidence, she contends, is nonexistent.
Gorman said she obtained unclassified information about her client in the fall of 2006 after U.S. District Judge John D. Bates in July or August ordered the government to turn over the record of Al-Ghizzawi's CSRT hearing to her. Gorman has a habeas corpus petition on Al-Ghizzawi's behalf pending before Bates.
To see the classified or secret portions of the CSRT, including the new exhibits, she had to make an appointment to visit a building in November at a secret location ''in the D.C. general area.''
Gorman said she was stunned again.
On Nov. 20, she wrote on the blog The Huffington Post, ''There was nothing new. Absolutely nothing new. There were no secrets. No new evidence.''
The government record asserts that valid evidence does exist against Al-Ghizzawi, but it's classified. Thus, from the vantage point of public knowledge, the matter is a standoff.
Gorman said she will ask Bates in January for summary judgment on her habeas corpus petition.
In response to Gorman's allegations, Navy Lt. Commander Chito Peppler, a spokesman for the Defense Department Office of Public Affairs, said:
''It is critical to understand that the CSRT is a multiple-step process, which is not complete until the convening authority [McGarrah] completes final review and approval of the decisions of the tribunals,'' Peppler said. ''The American people whom we are protecting expect us to be thorough and complete.''
According to McGarrah's testimony to the Senate, 558 detainees went through the CSRT process.
The panels found that 520 were properly listed as enemy combatants, and that 38 detainees never were, or no longer were, enemy combatants.
In McGarrah's Senate testimony, he said the 38 ''no longer met the criteria for designation as enemy combatants'' and ''were processed for release.''
It could not be learned in how many cases McGarrah ordered that CSRT hearings be repeated.
But Peppler of the Navy said, ''The vast majority of CSRT decisions were concurred in by the convening authority [McGarrah].''
Peppler added that in most of the cases that were returned for further deliberations, ''the original CSRT decision remained the same. ''Where original decisions changed, they changed in both directions. For example, we had an 'enemy combatant' decision changed to an NLEC, 'no longer enemy combatant.' ''
In addition to Gorman's client, the cases in which the original finding that the detainee was not an enemy combatant was reversed involve Hassan Anvar and the detainee identified in a study by Seton Hall University School of Law as detainee No. 556, named in other documents as Abdullah Khan. Attorney George M. Clarke of the Washington office of Baker & McKenzie represents Anvar and provided the Law Bulletin with the unclassified record of his tribunal hearing.
Anvar contended that he had traveled to Afghanistan from China to learn to use weapons to fight the Chinese.
The initial three-member tribunal said, ''The majority of the evidence is consistent with the detainee's explanation as to his presence and activities in Afghanistan, and very little evidence, if any, was presented to refute or discredit his explanations.''
That tribunal found unanimously that Anvar was not an enemy combatant, at least as far as the U.S. was concerned.
After a new hearing was ordered held and the government presented 12 new evidentiary exhibits, the new panel concluded that Anvar is an enemy combatant.
Currently, about 395 detainees remain at Guantanamo.
About a month after al-Qaida carried out the Sept. 11, 2001, terrorist attacks on the United States, the U.S. and NATO allies invaded Afghanistan to remove the Taliban and to pursue al-Qaida leader Osama bin Laden.
The U.S. and troops from other countries took approximately 10,000 captives. The vast majority were screened and released fairly quickly.
But 759 of these captives were detained as enemy combatants and taken to the U.S. Naval Base at Guantanamo Bay, Cuba.
U.S. officials said these detainees included terrorist trainers, bomb makers, recruiters, financiers, bodyguards for bin Laden and potential suicide bombers.
Under pressure from two decisions by the U.S. Supreme Court — in Rasul v. Bush and Hamdi v. Rumsfeld, both rendered in 2004, the Defense Department instituted the CSRT tribunals.
These tribunals are administrative proceedings held by panels of three military officers to formally assess whether each Guantanamo inmate was properly detained.
The government's position is that it set up the CSRT tribunals voluntarily.