RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. I'm Renee Montagne.
STEVE INSKEEP, host:
And I'm Steve Inskeep.
Unidentified Man #1: This tribunal is being conducted at 19:17 hundred hours, 6 October, 2004, on board naval base Guantanamo Bay, Cuba...
INSKEEP: We're listening to a military tribunal for a terror detainee at Guantanamo Bay, Cuba. You have likely heard about events like this. Now, for the first time, you can actually hear them. The U.S. military taped these proceedings. Lawyers for six of the detainees obtained the tapes through the Freedom of Information Act, and they gave NPR copies of the recordings. What we'll hear in the next few minutes is the main way the military determines if detainees deserve to be at Guantanamo.
NPR national security correspondent Jackie Northam is covering this story. And, Jackie, why is it important to pay attention to these court proceedings?
JACKIE NORTHAM: Well, these are the combatant status review tribunals, and they are a key part of the Bush administration's policy on the war on terrorism. In other words, how can they justify holding hundreds of suspected terrorists without charge at Guantanamo Bay, Cuba? These trials determine whether these men are enemy combatants. If they are, then the government says they can be held.
INSKEEP: Now, Jackie, I know you've attended some of these tribunals in the past. Can you just describe where these tribunals are taking place, what's going to be happening on the tapes we're going to hear?
NORTHAM: Well, they're held at Guantanamo Bay. They're in trailers - small rooms, low ceilings. The detainees are not allowed lawyers because the Pentagon says this is an administrative process. There's a court recorder, there's a translator, and there's a panel of three military officers. And this is who the detainees can tell their story to, ask why they are there being held, and also appeal for release.
INSKEEP: So what are we going to hear in this tape?
NORTHAM: Well, we're going to hear from tribunals of two detainees, Hadj Boudella and Mustafa Ait Idir. And this is how Mustafa's proceeding begins.
Unidentified Woman #1: This tribunal will determine whether Mustafa Ait Idir has been properly classified as an enemy combatant against the United States or its allies, or otherwise meets the criteria to be classified as an enemy combatant. This tribunal shall now be sworn. All rise.
NORTHAM: The audio recordings of the combatant status review tribunals are scratchy, of poor quality, and don't pick up much of what's happening in the small room. You can't sense facial expressions or body language, or that the detainees' arms and legs are shackled. However, you do hear the tribunal president ask Ait Idir if he's all right.
Unidentified Woman #2 (Tribunal President): Are those on too tight?
Unidentified Woman #3 (Translator): He says, I've had them on for a very long time.
NORTHAM: Testimony at the tribunals doesn't appear to follow any set pattern. Some start with questioning from the military officers. At others, the detainee will launch into a speech about how they were arrested and sent to Guantanamo, and how they're being treated at the detention camp.
Ait Idir speaks through a translator for almost an hour before the tribunal president interrupts him to inquire further about an incident.
Unidentified Woman #2: Are you saying that a soldier here at Guantanamo Bay broke your finger?
Mr. MUSTAFA AIT IDIR (Guantanamo Detainee): (Through translator) Soldiers took me and they placed me on the ground on the rocks outside. And I was bound from my hands and my knees.
NORTHAM: Ait Idir is one of six Algerians who lived in Bosnia for about a decade before being arrested shortly after 9/11 on suspicion of plotting to bomb the American and British embassies in Sarajevo. The men were held for three months until Bosnia's Supreme Court acquitted all of them.
Ait Idir and the others tell the tribunal that when they walked out of the police station free men they were quickly arrested again by Bosnian and U.S. officials, put on a plane, and sent to Guantanamo.
Hadj Boudella, one of the other detainees, tells the military panel at his tribunal that this is the first time he's heard some of the accusations against him.
Mr. HADJ BOUDELLA (Guantanamo Detainee): (Through translator) I've been here for three years these accusations just told me.
NORTHAM: What's striking is that despite not knowing fully why they're being held, enduring open-ended detentions and sometimes harsh interrogations, the detainees on these audio tapes express a faith that truth will prevail. Hadj Boudella says his lawyer at the Boston firm WilmerHale sent him a letter and told him not to participate in the tribunal for fear of incriminating himself.
Mr. BOUDELLA: (Through translator) I want to participate. I want to show you that I am really innocent and I want you to see I can defend myself. If you're innocent, no matter how people try to cover your innocence, it will come out.
Unidentified Man #2: We appreciate your decision to participate.
NORTHAM: The detainees question the panel about the evidence against them and ask for proof rather than just allegations. The audio recordings and transcripts show the unclassified evidenced is slim. It includes a list of accusations, petitions from their lawyers for habeas corpus, which challenges their detention, and affidavits attached to those petitions. One has a letter from his wife.
At one point, Ait Idir expresses disbelief over the lack of proof and tells the panel he hoped it had more evidence it could give him.
Mr. IDIR: (Through Translator) And if my supervisor came to me and showed me accusations like these, I would take these accusations and I would hit him in the face with them.
NORTHAM: Ait Idir apologizes to the military panel for being so blunt. Ait Idir, Boudella and the others all ask that they be allowed to provide the tribunal additional evidence, such as a copy of the decision by Bosnia's supreme court showing their acquittal. One detainee asked that his supervisor at the Red Crescent Society in Bosnia testify at the proceeding. He is told that a request was made twice to the U.S. State Department, which handles the matter, each time emphasizing the date of his tribunal. The tribunal president says there was no response from the State Department to either request.
In some cases, the detainees' representatives don't know what efforts have or are been made to locate requested evidence. The only witnesses available to Ait Idir and Boudella are the other men they were arrested with. Boudella asked this one witness the most pertinent question.
Mr. IDIR: Do you know if I belong to any terrorist organization or if I am a terrorist?
NORTHAM: In a simple, almost naïve answer, the witness tells the tribunal Boudella is not a terrorist.
Unidentified Man #3: All that I know about this person, he is very nice and be a good person from all the time I know him. And he takes good care of his family and he's a family man.
NORTHAM: The military panel ask the detainees many questions during each tribunal - where they grew up, where they worked, had they ever been to Afghanistan, and if they belonged to any terror organizations - before wrapping up the unclassified session of the tribunal.
Unidentified Woman #4: Mustafa, you shall be notified of the tribunal decision upon completion of the review of these proceedings by convening authority in Washington, D.C.
NORTHAM: Steve, that was two years ago. Boudella and Ait Idir were both found to be enemy combatants. They're still being held at Guantanamo Bay. In January, it will be five years, and they still have not been charged.
INSKEEP: No criminal charges in the case.
NORTHAM: No charges against them.
INSKEEP: We're listening to NPR's Jackie Northam, who brought us some tapes of detainees and their tribunals to determine their status at Guantanamo Bay.
And, Jackie, now that we've listened to this, how do these proceedings compare to the kind of criminal trial that Americans are familiar with?
NORTHAM: Critics have always said that these types of tribunals are deeply flawed. They point to things like the detainees only allowed to sit in for the unclassified section of the trial. They're never allowed to see or hear, have any idea of the classified information against them.
A study was done actually by Seton Hall University, some lawyers. And they crunched some numbers. They looked at hundreds of similar tribunals such as this, and they found that in most cases the government never produced any witnesses at these tribunals and that the detainees were only allowed to use other detainees as witnesses. In fact, you know, any time that they requested from somebody who was so-called off-island, never made it to the trial. And that's what we heard in these - with these cases, as well. So it's very indicative.
INSKEEP: What does the Pentagon say about these proceedings and their fairness?
NORTHAM: They say they are fair. You know, they say the men are allowed there. They're allowed to state their case. They're allowed to produce witnesses and produce any other evidence. But it just doesn't work out that way. And it's also very difficult to find witnesses, too. I remember the prosecutor once telling me that, you know, the addresses there in Afghanistan - turn left at the big rock, and turn right down the small dirt road - it's impossible to find some of these people. But in many other cases it's not.
INSKEEP: Okay. That's NPR's national security correspondent Jackie Northam.
NORTHAM: Thank you.
INSKEEP: And if you want to listen to more of these tribunals recordings obtained by NPR, as well as read declassified documents, just go to our Web site, NPR.org.
It's MORNING EDITION from NPR News.