Guantanamo decision is under fire

Defense Secretary Robert M. Gates on Wednesday defended a Pentagon decision to hold secret hearings for 14 suspected terrorists transferred to Guantanamo Bay last year, despite the fact that similar proceedings have been held in open session.

The decision, announced earlier this week, represents a change in administration policy and was criticized by former military lawyers and human rights organizations.

Gates said he did not think that closing the combatant status review tribunals for the 14 suspects, who include alleged Sept. 11 organizer Khalid Shaikh Mohammed, would undermine the credibility of the process.

“For these particular individuals, a good deal of the discussion associated with their evaluation is going to [involve] classified information,” Gates said at the Pentagon. “That’s the reason.”

But some of the former military lawyers disagreed.

“If we appear to be putting a cover over Guantanamo, I think it is a mistake,” said Scott Silliman, a Duke University law professor who served for 25 years as an Air Force lawyer.

Combatant status review tribunals are brief hearings that establish the reason for the U.S. military to hold a detainee. They are not intended to determine guilt or innocence and are separate from the military commission trials -- formal trials that could lead to the death penalty -- established last year by Congress.

The 14 suspected terrorists transferred last year to Guantanamo are not expected to appear before the military commissions until next year.

Earlier combatant status review tribunals for Guantanamo detainees were open to the media, although portions of the proceedings were closed to both observers and the accused because of concern about classified information.

Sen. Lindsey Graham (R.-S.C.), who pushed to ensure that federal legislation gave detainees the right to see all of the evidence used against them in military commission trials, said he did not object to closed status review hearings.

“I think it is completely justified. We are talking about the alleged mastermind of 9/11. I cannot think of a more sensitive topic,” Graham said of Mohammed. “Eventually, if he is tried by a military commission, some of it will be open and some will be closed.”

Retired Rear Adm. Don Guter, the Navy’s top uniformed lawyer when military commissions for Guantanamo Bay detainees were first proposed in 2001, agreed that there were legitimate national security issues in holding open hearings. He said he would have preferred to see the administration open the hearings but conduct portions behind closed doors when classified information was discussed

“I think it does hurt the credibility. Anything closed is going to raise issues,” he said.

Human rights groups said that the hearings were being closed to the media because the Bush administration feared the detainees would make allegations that they were subjected to harsh forms of interrogations, such as water-boarding, a form of simulated drowning, or other abuse.

“Let’s say Khalid Shaikh Mohammed decides to participate, and they ask him a question and he says, ‘You got that information when you were water-boarding me,’ ” said Jumana Musa, an advocacy director for Amnesty International. “My guess is they don’t want the press there, and they don’t want that showing up in any public transcript.”

Jameel Jaffer, a staff attorney for the American Civil Liberties Union in New York, said that his organization had been hoping to observe the combatant status review tribunals and suspected that the Defense Department closed the hearings out of fear of what the detainees might say.

“We do not think they have any legitimate reason to be closed,” he said. “If everything takes place behind closed doors, there is a reasonable suspicion the hearings are not fair.”

Although transcripts of the hearings will be released, they will be censored. Defense officials have reserved the right to redact allegations of abuse from the transcripts, a move Jaffer opposes.

“There is no legitimate reason to redact information relating to the treatment or abuse of prisoners,” Jaffer said.

Gates said he would like to close Guantanamo altogether but said the Defense Department was faced with the question of what to do with detainees who could not be returned to their home countries.

“We are trying to address the problem of how do we reduce the numbers at Guantanamo, and then what do you do with the relatively limited number ... that it would be irresponsible to release,” he said. “And I would tell you that we’re wrestling with those questions right now.”

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julian.barnes@latimes.com