WASHINGTON – The Pentagon began informing detainees at the U.S. naval base in Guantanamo Bay, Cuba, on Monday that they could challenge their captivity before newly created military tribunals.

But the one-page notice, which was translated into 17 languages, provided scant information about the detainees’ right to petition a federal judge for release and made no mention of a recent Supreme Court decision affirming that right.

“I feel like this is flouting the words of the Supreme Court, and that is amazing to me,” said Barbara Olshansky, a lawyer at the Center for Constitutional Rights, which has represented Shafiq Rasul, a British detainee whom the U.S. government accuses of being an “enemy combatant” who fought for al-Qaida and Afghanistan’s Taliban.

The Bush administration has maintained that enemy combatants aren’t entitled to the traditional legal rights provided under international law or the U.S. Constitution and can be detained indefinitely. In particular, the Bush administration has argued that enemy combatants in prison on Guantanamo aren’t entitled to access to U.S. courts. Some detainees on Guantanamo have been held without charges since January 2002.

Last month, the Supreme Court rejected the administration’s position and ruled that detainees could ask a federal court to determine whether they were legally detained.

In response, the Pentagon said it was creating special “combatant status review tribunals” that would provide each detainee the opportunity to argue his case before a three-member military tribunal that will determine whether he’s been properly classified as an enemy combatant or should be released.

In explaining the creation of the new tribunals, Pentagon officials said they hoped the tribunals would convince federal courts that detainees had been given fair hearings. But lawyers for the detainees and some legal experts have criticized the idea for robbing detainees of due process, in other words depriving them of established judicial proceedings that guarantee their legal rights.

In particular, critics have condemned the Pentagon’s refusal to allow lawyers to represent the detainees before the tribunals. Instead, the notice says each detainee will be assigned a military officer to act as his “personal representative” before the tribunal.

“The idea that the military can be on both sides of the case does not seem to me to satisfy elemental notions of due process,” said retired federal Judge John Gibbons.

The notice distributed to detainees Monday said they would be able to call witnesses or to seek written testimony from witnesses who couldn’t “reasonably” appear at Guantanamo.


In a briefing last week, Secretary of the Navy Gordon England said he expected that such testimony would be submitted in the form of affidavits, but that he didn’t know how the detainees would find witnesses in places such as Afghanistan or Pakistan.

England also said that any information exchanged between the detainee and his personal representative wouldn’t be considered confidential lawyer-client communications.

“We want all the facts to come forward,” England said.

The letter makes it clear that the detainees are presumed to be correctly classified. The first sentence says: “You are being held as an enemy combatant by the United States Armed Forces.”

Though detainees don’t have access to newspapers, radio and television and haven’t been told of the Supreme Court decision, the notice refers only indirectly to the landmark ruling in one sentence: “As a matter separate from these Tribunals, United States courts have jurisdiction to consider petitions brought by enemy combatants held at this facility that challenge the legality of their detention.”

The notice doesn’t explain how such a challenge can be brought by a detainee who’s isolated on Guantanamo. “It says you will be notified in the near future what procedures will be available,” said Cmdr. Beci Brenton, a Pentagon spokeswoman. “Those procedures are still being worked out.”

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