Under detailed questioning by a federal judge, government lawyers asserted Wednesday that the U.S. military could 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 Qaeda terrorists? asked U.S. District Judge Joyce Hens Green.
“She could,” replied Deputy Associate Atty. Gen. 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 could pick any foreigner who provided 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 promised to be a long battle to flesh out the meaning of the Supreme Court’s June 28 ruling that the Guantanamo prisoners could ask U.S. courts to ensure they had 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 today.
The government has asked the judges to throw out the cases.
Boyle said combatant status review tribunals set up by the U.S. military since the Supreme Court decision, and a subsequent annual administrative review by the military provided “more than sufficient due process” to satisfy the high court.
Wilner and other attorneys for detainees called the review tribunal process inadequate. They said the panels, which consisted of three military officers, had orders to presume the government’s evidence was accurate and to accept statements given under torture, and didn’t allow the detainee to have a lawyer or to 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 had been through the process and only one had been declared a noncombatant and released even though the government had 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 advisors, intelligence informants, or supply workers, including cooks, he said.
Green asked if a hypothetical resident of England who taught English to the son of an Al Qaeda leader could be detained. Boyle said he could because “Al Qaeda 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.
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 Qaeda has a global reach.”