KHOST, Afghanistan — Guantanamo detainees appearing before the military tribunals that would decide their fate had little chance of receiving evenhanded hearings, an eight-month McClatchy investigation found. At least 40 former Guantanamo detainees of the 66 interviewed had tribunal hearings, but none was able to submit testimony from witnesses outside the detention facility.
Former detainees singled this out as the most serious flaw in the operation of the combat status review tribunals, but it was only one of many.
In its landmark ruling last Thursday, which granted detainees access to federal courts, the U.S. Supreme Court said that there was "considerable risk of error" in the tribunal's findings of fact and that detainees might be held for "a generation or more" on the basis of error.
"The detainee has limited means to find or present evidence to challenge the government's case, does not have the assistance of counsel and may not be aware of the most critical allegations that the government relied upon to order his detention," the court said. "His opportunity to confront witnesses is likely to be more theoretical than real, given that there are no limits on the admission of hearsay," the ruling said.
McClatchy's review of tribunal transcripts and interviews with former detainees and military defense attorneys also showed that the tribunals consistently failed to distinguish hard-core international terrorists from low-level fighters and innocents.
Although the Supreme Court sharply criticized the tribunals, it stopped short of ruling them illegal.
One Afghan whom McClatchy interviewed might have been cleared readily had the tribunal undertaken the most basic steps. Swatkhan Bahar had to beg for help from the three U.S. military officers who presided over his tribunal at Guantanamo during the summer of 2004.
U.S. authorities accused Bahar of helping Taliban forces attack American soldiers, according to an unclassified transcript of the proceedings. Speak with someone from Afghanistan, Bahar pleaded, and you will find out who I am: an employee of the Afghan Interior Ministry in Khost and a friend of the Americans.
A Marine colonel replied that no witnesses were available from outside Guantanamo to testify on Bahar's behalf.
It took a McClatchy reporter only a couple of phone calls to find Mohammed Mustafa, who was the Afghan Interior Ministry's security chief for Khost from late 2001 to mid-2003. Mustafa confirmed much of Bahar's story: He said that a rival in the Afghan security services had framed Bahar.
"There was no proof against him, nothing indicating he was involved with these sorts of activities," Mustafa told McClatchy. "I went to the Americans' base and asked them to release him, but they wouldn't."
Bahar was at Guantanamo for more than four years. "When I asked the judges in the tribunal why I was still at Guantanamo, they just shrugged," he said during an interview in Khost.
Of the 572 detainees who went through the tribunal process, only 38 were found to be "no longer enemy combatants" and released, according to Capt. Lana Hampton, a spokeswoman for the Pentagon office that oversees the tribunals at Guantanamo.
Hampton said in an e-mail exchange that "In some cases, requested witnesses could not be found; in other cases, witnesses who were located declined to participate. Because travel to Guantanamo can be difficult and costly, testimony was taken from the witnesses who were located and agreed to participate, and was provided to the CSRT (tribunal) via affidavits."
Asked to provide an example in which such outside witness testimony was collected for a tribunal hearing at Guantanamo, Hampton declined.
The tribunals began in 2004 and were followed by annual review boards, which operated in a similar fashion.
The third step of the legal process at Guantanamo was a military commission to try detainees for alleged war crimes. The commissions allow legal representation for detainees and a review of evidence that was lacking in the tribunals.
But the Supreme Court's ruling last Thursday said that detainees who went through the tribunal process should have had access to U.S. federal courts to contest their incarceration. It also said that the provision of the 2006 Military Commissions Act that blocked habeas corpus for detainees was unconstitutional.
Military commissions so far have opened 21 cases, and one of those has been resolved. That was a guilty plea-bargain by Australian David Hicks in March 2007, which allowed him to return home, where he was released from custody before the end of last year.
Brig. Gen. Thomas Hartmann, a legal adviser to the convening authority for the office of military commissions, said in an interview that the process was "extremely open, fair and legitimate."
As for the fact that fewer than two dozen cases have been opened so far, Hartmann said: "We understand that it's important to bring the process along, and we are proceeding intently."
Asked how the commission decides which detainees are referred to military commissions, he said:
"There's no specific criteria. . . . There's no specific science to that, but it's based on experience and the seriousness of the war crimes," Hartmann said.
While officials such as Hartmann have been guarded in their defense of the system, a group of military defense attorneys have been very public about attacking its merits.
Lt. Col. Colby C. Vokey, a Marine lawyer who was assigned to one of the military commission cases in 2005, said he came into the process thinking it would be a tough job, but concluded that it was impossible.
It often was unclear what case law he should use, and the rules changed frequently, he told McClatchy. On more than one occasion, he said, he left a hearing before the commission only to open an e-mail on his computer saying that a rule had been changed.
"You had no idea what law was applicable, if any," said Vokey, who left the commissions after his client, Canadian-born Omar Khadr, dismissed all his lawyers. "It was a process designed to achieve convictions. . . . There was no law present."
Lt. Col. Bryan Broyles, who's represented a Saudi man in the commission process since 2005, said that the commissions seemed to have been designed to avoid full trials that would examine all the facts of detainees' cases.
He said he thought that the Bush administration chose to go with military commissions because they were the only venue that would be fully under executive branch control, thus making any judicial review of the cases less likely.
"It's a system entirely created by the civilian leadership of the military. . . . It's not something we have anything to do with," he said in an interview. "The civilians that write the system, that push it forward, have something to answer for."
In an affidavit filed with the Supreme Court, an Army officer who worked for the office that oversaw the Guantanamo tribunals from September 2004 to March 2005 said they were deeply flawed.
Lt. Col. Stephen Abraham, an Army lawyer in the Reserve, said that the vast majority of soldiers in the office were reservists with no experience in either intelligence or legal work.
The information gathered for the tribunal panels was assembled by people who "in most instances, had the same limited degree of knowledge and experience relating to the intelligence community and intelligence products," Abraham wrote. That information often either wasn't specific to the detainee before the tribunal or was of limited scope, he said.
The one time he served on a panel, Abraham wrote, "All of us found the information presented to lack substance. . . . What were purported to be specific statements of fact lacked even the most fundamental earmarks of objectively credible evidence."
That appears to be true in the case of Ali Shah Mousavi.
A former member of Afghanistan's interim loya jirga, the first democratic legislative body formed after the Taliban fell, Mousavi is a Shiite Muslim, a sect that the Taliban oppressed and al Qaida often targeted for death as heretics.
The American officers at Mousavi's tribunal said he was accused of being a Taliban and al Qaida supporter.
The officers apparently hadn't spoken with witnesses from Afghanistan. If they had, Abdul Jabar Sabit, the country's attorney general, would have told them differently.
Sabit interviewed Mousavi at Guantanamo, where the attorney general was given a briefing by American military officials about the charges against Mousavi.
"He was there because of the Kalashnikov. . . . His house was searched and two Kalashnikovs were discovered, and that was enough for the Americans," Sabit said in a conversation at his Kabul office. Kalashnikovs, also known as AK-47s, can be found in virtually every household in Afghanistan.
A second senior Afghan official confirmed Sabit's account.
"There was a feud, and he was handed over to the Americans even though he was innocent," said an intelligence officer who's met Mousavi and reviewed his case several times. "He is actually very pro-government."
The officer spoke on condition of anonymity because intelligence officials in Afghanistan often are targeted for assassination.
It took McClatchy only a few days to arrange interviews with both men. Mousavi was imprisoned at Guantanamo for about three years.
McClatchy Newspapers 2008