Proposal to keep some prisoners 'off the books' went against promises for yearly case reviews.
Los Angeles Times
July 9, 2004
By John Hendren and Mark Mazzetti
Despite pledging yearly reviews for all prisoners held by the U.S. military at Guantanamo Bay, Cuba, Pentagon officials tentatively agreed during a high-level meeting last month to deny that process to some detainees and to keep their existence secret "for intelligence reasons," senior defense officials said Thursday.
Under the proposal, some prisoners would in effect be kept off public records and away from the scrutiny of lawyers and judges.
The meeting on the Guantanamo reviews occurred months after U.S. officials came under harsh criticism by investigators and human rights observers for practices involving "ghost" detainees in Iraq who were kept hidden from inspectors for intelligence purposes.
It was unclear Thursday whether the Pentagon had followed through with the proposal, or how it would be affected by last month's Supreme Court ruling that granted detainees access to American courts. It also was not clear how many detainees the proposal would apply to. The Pentagon said there currently were 594 detainees at the camp, nicknamed "Gitmo." A Swedish detainee was released Thursday.
But at the Pentagon meeting called to discuss the annual detainee reviews — which are to be overseen by Navy Secretary Gordon R. England — senior officials said they wanted to keep a small number of prisoners' names out of public records to allow intelligence officials to continue interrogations, a senior defense official said on condition of anonymity.
Such a move would create an exception to the Pentagon promise to review the case of every detainee annually to determine whether he continued to pose a threat to the United States. Defense Secretary Donald H. Rumsfeld first disclosed plans to provide annual reviews to detainees in February, in response to human rights concerns expressed over open-ended imprisonment.
Two senior defense officials said they believed that the prisoners who would be denied the reviews might be held by the CIA, rather than the Defense Department.
A U.S. intelligence official said Thursday that the CIA was not holding any detainees at Guantanamo, but added that the annual reviews would not apply to CIA prisoners elsewhere.
But another source, a former senior defense official with knowledge of detainee issues, said the Pentagon did not control the interrogations of all Guantanamo detainees. "There are some individuals down there where DOD doesn't have the lead on their interrogation and intelligence exploitation," the former senior defense official said on condition of anonymity.
Another senior defense official said that the wording in a June 23 statement on the promised annual reviews led him to believe that the detainees exempted from the review were being held by the CIA.
In that memo, England described mandatory annual reviews of "Department of Defense" detainees — a designation that would exclude any detainee held by the CIA. One of the senior defense officials said Wednesday that that designation had been inserted deliberately.
"People very, very carefully crafted those words," the official said. "When the draft language was sent around, they were very adamant about keeping the words 'under DOD control' in. It led me to believe that there were non-DOD detainees down there."
When Pentagon officials this week announced a separate, one-time review into whether each prisoner had been properly labeled an "enemy combatant," the order again specified that it applied to "all detainees under the control of the Department of Defense."
The proposal to deny some detainees' annual reviews rankled some in the Pentagon, which is trying to recover from international criticism of the abuse scandal at the U.S.-run Abu Ghraib prison near Baghdad. In light of the Supreme Court decision granting Guantanamo detainees access to American courts, some internal Pentagon critics said it would be unlikely that detainees held secretly would be allowed to appear in federal courts.
A Pentagon spokesman said he knew of no detainee at Guantanamo who would not receive annual reviews, and did not know of an agreement to deny detainees reviews.
"It's my understanding that everybody under DOD custody will be subject … to the annual review process that has been outlined previously," said the spokesman, a senior defense official.
Asked if any detainees were not under the Defense Department's control, he said, "Not that I'm aware of."
One of the senior defense officials was skeptical as to whether denying such a review would conform with the Supreme Court ruling giving detainees access to federal courts.
"I don't know how any of this squares with anything. That's been my problem with this thing from the beginning," he said. "Any time you get the dark side involved, human rights tend to be less of an issue."
One critic said he spoke out about the proposal because he felt that holding detainees "off the books" was unnecessary and potentially illegal. He discounted arguments that the secrecy would withhold news of the captures from other terrorists.
"These Al Qaeda guys are smart," one of the senior defense officials who was critical of the policy said on condition of anonymity. "If Mohamed is no longer on the other end of the phone, they're going to know we've got him."
Copyright 2004 Los Angeles Times