Most Guantanamo captives remain far from release

WASHINGTON -- Recent legal cases have penetrated the secrecy of the Bush administration's treatment of terrorism detainees, revealing that foreigners who aided al-Qaida can be held indefinitely even if that help was unintentional or evidence of it was produced by torture.

But new legal opportunities for the 550 detainees at Guantanamo Bay, Cuba, to seek freedom probably won't produce many releases soon.

Only two detainees have been released by the Combatant Status Review Tribunals the Pentagon set up in response to one of two June decisions on detainees by the Supreme Court. One of the rulings opened the door for foreigners detained as enemy combatants to challenge their imprisonment at the U.S. naval base in Cuba.

With more than 510 hearings completed, the military panels have repeatedly ordered continued detention.

"So far, it's a disaster" for detainees seeking release, said Eugene Fidell, a Washington lawyer who specializes in military law. "The due process has been illusory."

Defense lawyers contend the Pentagon has interpreted the ruling too narrowly. Current and former administration officials maintain that the policies in place comply with high court decisions while protecting Americans from terrorists.

Georgetown law professor Viet Dinh, former policy chief of the Bush Justice Department, predicted the courts will uphold the current Pentagon procedures.

In the lawsuits, detainees want federal judges to order the Pentagon to let them have lawyers at the tribunal hearings, see secret evidence against them, and exclude evidence gained by torture or to have civilian U.S. courts hear their cases.

"I'm not surprised that having gotten the double, the detainees would like the home run, but I don't think they'll get it," Dinh said.

Nonetheless, the high court ruling and subsequent proceedings have produced some results in the second half of 2004:

* The Pentagon established the new military reviews of detainees.

* More than six dozen current or former detainees have filed 21 lawsuits seeking either release, millions of dollars in damages for mistreatment or expanded procedural rights in military trials. All are in preliminary stages, and more lawsuits are expected.

* Military review hearings and lawsuits have disclosed new details about how the government is dealing with detainees at Guantanamo, the government's evidence against them and the first reports of what detainees have said in their defense.

* Appeals over procedural rights have halted military trials that were getting underway for the only four detainees who have been charged with crimes.

Some detainees used the lawsuits and hearings to claim they were victims of torture. Others claimed the only evidence against them was gathered by torture.

Though denying there has been torture at Guantanamo, Principal Deputy Associate Attorney General Brian Boyle acknowledged the military panels would consider evidence gathered by torture in foreign countries even though such statements have been barred from U.S. courts for 70 years because of unreliability.

Once described by the government as "the worst of the worst" of al-Qaida and Taliban fighters captured during the invasion of Afghanistan, the detainees turn out also to include drivers, cooks, religion teachers and others.

Some claim they were coerced into helping the Taliban or were involved in charity work unconnected to al-Qaida or the Taliban. Some were picked up in Europe and Africa.

Government attorneys warn that al-Qaida gives its trainees innocent cover stories to use if captured.

But Boyle acknowledged that the U.S. military's worldwide effort to seize al-Qaida supporters hypothetically could detain a "little old lady in Switzerland" who donated money to a charity that she didn't know was an al-Qaida front group.

Defending the tribunals' tiny number of releases, Boyle said 200 detainees were released before the Supreme Court ruling, leaving at Guantanamo those the government suspected most.

But Yale Law School Dean Harold Koh said, "The government seems to have construed the Supreme Court decisions as a license to give away ice in the winter time." Rather than giving the courts a role and structuring "meaningful review," the government "is trying to structure a system that is the same as they had before, reading those June rulings extremely narrowly," he said.

In the other Supreme Court ruling in June -- involving a U.S. citizen captured in Afghanistan and held without charges -- Justice Sandra Day O'Connor suggested it might be enough for the government to give U.S. citizens detained as enemy combatants a chance to contest their jailing before "an appropriately authorized and properly constituted military tribunal."

Dinh, the ex-Justice policy chief, said if the military panels are judged to meet O'Connor's test for U.S. citizens, certainly "they would be sufficient to protect the rights of foreigners at Guantanamo."

The government has asked two federal judges to throw out the detainee lawsuits without hearing evidence. Decisions are expected soon, but appeals are probable.

If the government wins dismissal, the newly disclosed information will be of little use to defense lawyers. "It's a pyrrhic victory to have information that you can't do anything with," Fidell said.

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