The flood of news stories in the wake of the latest Wikileaks document dump reveal how one Guantanamo detainee after another was imprisoned at Gitmo for years based on tips from informants that turned out to be false. As James Carafano of the Heritage Foundation said in today's New York Times, that's not a big surprise. Law enforcement relies on such dubious tips in building criminal cases all the time. "The nature of intelligence is that it is ambiguous sometimes. It is sometimes based on sources you wouldn't take to Sunday school."
In criminal cases, that's not necessarily a problem, because criminal defendants ultimately get a chance to test the evidence in court. But that's not the case for military detainees. Until the Supreme Court ruled in 2008 that Guantanamo prisoners had a right to challenge their detention in federal court, they were stuck in the prison with no independent assessment of their guilt or innocence.
In fact, that's still the case for detainees imprisoned by the United States in Afghanistan today. The U.S. military holds some 1700 detainees at a prison on the Bagram Air Base in Afghanistan - nearly ten times as many as remain at Guantanamo. But unlike at Guantanamo, prisoners in Afghanistan don't have the right to legal representation or to challenge or even to see the secret evidence being used against them.
Unfortunately, as the latest set of documents revealed by Wikileaks demonstrates, the military's ability or willingness to truly vet its secret informant evidence does not inspire confidence. The result is that we may well be imprisoning the wrong people.
In some cases, these Afghan detainees may be truly dangerous Taliban operatives that the government is legitimately keeping off the battlefield. But in other cases, the prisoners may be completely innocent. It's impossible to know.
The New York Times today describes the case of Guantanamo detainee Mohammed el-Gharani, deemed "an al Qaeda suicide operative" on the basis of statements from two informants - one who turned out to be a serial informant with major psychiatric problems, and another who admitted he had a bad memory and had deliberately tried to mislead investigators.
The background and integrity of an informant is all the kind of information that ordinarily comes out in a trial, where evidence is presented publicly and then challenged by both sides. In Gharani's case, the dubious value of these "tips" was only revealed once he was able to challenge his detention in court, via a lawyer who brought a habeas corpus petition. The federal judge eventually decided the "intelligence" was far too dubious to justify Gharani's continued imprisonment.
But none of this happens in Afghanistan. Detainees held by U.S. forces there are not allowed to have lawyers. And although they're allowed to attend a hearing every six months to make a statement to a Detainee Review Board, which consists of three U.S. military officers, they're not allowed to see the evidence provided to the military by informants, because it's classified. In most cases, that means they're not allowed to see a critical piece of the evidence being used against them.
I went to observe these hearings in Afghanistan in February (I'll be producing a report on this soon), and was shocked by how little evidence was actually presented during the unclassified portion of the hearing. Mostly, it consisted of a U.S. military officer reading the charges and reciting any incriminating items found near where the detainee was arrested. Sometimes those items, such as weapons or explosive devices, were found in a neighbor's house, and had no evidence connection to the detainee himself. The government didn't produce a single witness in any case I observed to explain how or where the items were found or why the government believed they were connected to the detainee.
After about a half-hour open hearing, each session was closed so that classified informant evidence could be presented. I wasn't allowed to see it, and neither was the detainee. Was it damning, and reliable? Maybe. But so long as prisoners in Afghanistan don't get to make their case to an independent judicial body or be represented by lawyers trained to challenge the evidence, no one outside the U.S. military will ever know.