Moving at what officials acknowledge is extraordinary speed, the Pentagon may begin special military hearings by the end of next week allowing prisoners held as unlawful combatants at Guantánamo Bay, Cuba, to try to convince a board of officers that they are being wrongly detained.
At the same time, law firms enlisted by civil liberties groups have been rushing to establish a different route of challenging the detentions, by filing court petitions. By next week, petitions may have been filed in federal court here on behalf of as many as a third of the detainees.
In effect, the two sides are engaged in a kind of undeclared legal battle to decide how the fate of the 594 detainees remaining in Cuba will be determined in light of a Supreme Court ruling issued last month. And both the Pentagon and the defense lawyers evidently believe that they need to move speedily to gain an advantage.
In their decision, the justices held that the federal judiciary’s reach extended to Guantánamo Bay and that prisoners there must be allowed an opportunity to challenge their detention before a judge or other ”neutral decision-maker.”
The Defense Department responded last week with plans for hearings at Guantánamo before newly created Combatant Status Review Tribunals, which would qualify as neutral, the department said, since the officers serving on them would have no stake in the fate of a particular detainee.
The civil liberties groups maintain that this solution has less to do with the Defense Department’s intention to comply with the justices than with a determination to maintain control of the challenge process. The Pentagon evidently hopes that these hearings will be enough to persuade the courts not to intervene, say the critics, who as a result have added incentive to file their petitions as quickly as possible.
Gordon R. England, the secretary of the Navy, who put together the Pentagon’s plan, said at a press briefing Friday that the first hearing might take place late next week. He said officials hoped to get quickly to a point of moving 72 detainees a week through the process.
”We’re confident that we will finish this, on the outside, in three to four months,” Mr. England said, though he acknowledged that the procedures to be followed at the hearings were not yet complete.
One military lawyer noted that the Pentagon usually moved in a more deliberate fashion; its plans for military commissions to try some detainees for war crimes were developed more than two years ago, for instance, and there has yet to be a commission proceeding. Of the new review process, the lawyer said, ”This is like moving at the speed of light for the military.”
Under procedures for the review, each detainee choosing to participate will meet with a military officer who will act as his representative, but not as his lawyer or other kind of advocate. The detainee will be given a document with an unclassified version of the accusations that were the basis on which he was deemed an unlawful combatant.
With the help of his representative, the prisoner will then argue his case before one of three tribunals, each composed of three officers. Secretary England said the proceedings would be open to a small press contingent, although probably not in time for the earliest hearings.
Several of the lawyers who have challenged the detentions were highly skeptical of the military’s purpose in moving quickly on the hearings.
Michael Ratner of the Center for Constitutional Rights, a New York group that helped bring the challenge leading to the Supreme Court’s decision, said it appeared that the Pentagon was engaged in a last-ditch effort to retain control of the detainees by arguing that the military had provided a fair process and so persuading the courts not to take jurisdiction.
”Our theory here,” Mr. Ratner said, ”is that we believe the Supreme Court decision gives the inmates the right to file habeas corpus petitions in federal courts.”
Joseph Margulies of the University of Chicago Law School, who argued the case for Mr. Ratner’s organization before the Supreme Court, said the justices’ decision required that detainees have an opportunity to contest their imprisonment under standards that are reviewable by federal courts for fairness.
”There is no way that these tribunals could meet that standard,” Mr. Margulies said, citing several features of the plan, among them that the detainees will be represented not by advocates but by military officers with whom they will have no lawyer-client relationship. In the absence of a confidential relationship, any information a military representative obtained from a detainee could be shared with the tribunal.
Secretary England said the proceedings were not supposed to be like trials.
”This is a fact-based determination,” he said. ”This isn’t guilt or innocence. This is a look at facts. Here’s a person: are they, are they not, an enemy combatant?”
But Mr. Margulies said he believed that the hearings were part of an effort by the Bush administration to ”keep Guantánamo an enclave outside the law.”
”The entire process,” he said, ”is a sham.”
Defense lawyers said they believed that in order to press their cases before the courts, they needed to be allowed to meet with their clients. Some have been promised that they will be able to meet them, but none have yet been given permission to do so. Thomas Wilner, a Washington lawyer who represents 13 detainees from Kuwait, said of the process, ”I hope they are not delaying this on purpose.”
Bryan Whitman, a Pentagon spokesman, said in an interview that there was no intention to delay lawyers’ visits to Guantánamo.
”It’s obviously not a place you can just fly to,” Mr. Whitman said. ”We are working on the issues of clearances and logistics.”
Pentagon officials and the defense lawyers appear to agree that the hearings may well bring a significant reduction in Guantánamo’s population. Asked what would happen when a tribunal deemed detainees not to be unlawful combatants, Mr. England replied, ”They go home.”
Mr. England said that in the last few days, officials had notified all the Guantánamo detainees of their right to a hearing. About 95 percent asked to participate and to see a representative, he said. The remaining 5 percent, he said, angrily rejected the process, some crumpling up and throwing away the information sheet telling them of it.
The information sheet, which officials said had been translated for each of the detainees, also notified them of a right to challenge their detentions in federal courts as well. Mr. England said he did not know how many of the detainees inquired about that right when shown the notices.
In another announcement related to detainees of the American military, the Pentagon said it was setting up an office to keep senior officials better informed of reports from the International Committee of the Red Cross. At Congressional hearings into abuses at Abu Ghraib prison near Baghdad, senior officers acknowledged that they had not responded properly to a Red Cross report about conditions there.
Ryan Henry, the principal deputy under secretary of defense for policy, told reporters that the new Office of Detainee Affairs was being created as a ”correction vector.”