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(Washington, DC) - As the fifth anniversary of the Guantanamo Bay detention center approaches, Human Rights Watch denounced the ongoing detentions there as a shameful blight on US respect for human rights. Human Rights Watch called on the Bush administration to bring criminal charges or release the nearly 400 detainees, and restore their access to federal court.

On January 11, 2002, the first 20 detainees in the “war on terror” arrived, hooded and shackled, at Guantanamo Bay, Cuba. Today, close to 400 men remain there without charge, unable to challenge the lawfulness of their detention before federal court.

“Detaining hundreds of men without charge at Guantanamo has been a legal and political debacle of historic proportions,” said Kenneth Roth, executive director of Human Rights Watch. “It’s time to close Guantanamo. The Bush administration should either charge or release the detainees trapped in a nightmarish limbo.”

Since establishing the detention center at Guantanamo Bay, the Bush administration has sought to shroud it in secrecy and insulate its actions from judicial review. After the Supreme Court ruled that detainees could challenge the lawfulness of their detention in courts, the Bush administration pushed legislation through Congress that revokes that right. The same legislation strips detainees of the right to challenge their treatment, even if they have been tortured, and even after they have been released.

“The first order of business for the new Congress should be to restore the detainees’ right to habeas corpus,” Roth said. “It’s a vital mechanism for preventing abuse of detainees and for protecting people who shouldn’t be in detention.”

The administration has sought to justify its ongoing detentions at Guantanamo by labeling those held as “enemy combatants” without regard to the requirements of the laws of war. The Department of Defense claims it is giving the detainees basic due process rights through so-called Combatant Status Review Tribunals, cursory administrative hearings in which detainees can contest their designation as enemy combatants. However, these hearings do not even come close to anything like an independent judicial review: they are neither independent nor fair.

In the Combatant Status Review Tribunals, the government relied extensively on secret classified evidence – putting the detainee in the impossible situation of rebutting evidence that he had never seen. In many cases, the detainee was never even told what specific activities he was accused of doing that would supposedly make him an “enemy combatant.” Coerced statements – even if obtained by torture – were admissible against the detainee and, like all of the government’s evidence, presumed to be “genuine and accurate.” And detainees could not be represented by lawyers, and in most cases were not able to produce any witnesses or evidence apart from their own statements.

“If the US believes that these men have committed acts that legally justify detention, it is hard to understand why it is so fearful of meaningful and independent judicial review,” Roth said.

Although they have been labeled “combatants,” most of the detainees were picked up far from any battlefield. According to the Pentagon’s own records, the US has not even accused the vast majority of them of carrying a weapon or fighting US or coalition forces. Hundreds of the detainees were sold to the US by bounty hunters or turned over by rival clan members, while high-level Taliban and al Qaeda operatives with the resources to buy their freedom got away.

Detainees include: men who were arrested in Bosnia and have been cleared of wrongdoing by Bosnian courts; an Afghan who opposed the Taliban and joined the transitional government but was turned over to US forces by a rival clan; and more than a dozen Chinese Uighurs who have been slated for release but cannot be returned to China because they will likely be tortured. They have nowhere else to go and have been refused asylum in the US.

The Bush administration claims it plans to charge up to 70 of the Guantanamo detainees in the military commissions authorized by Congress in October 2006. That leaves more than 300 men still held in Guantanamo without charge and without any clear explanation of what they are accused of doing. Many should have been released long ago under the laws of armed conflict.

“Not a single one of the allegedly high-level terrorists has been brought to trial for his crimes,” Roth said. “The victims of September 11 and the American public deserve to see justice done.”

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