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A large number of detainees who were cleared to leave the U.S.-run prison at Guantánamo after military hearings last year remain in custody -- raising questions among prisoners and their attorneys about the legitimacy of the system the U.S. Army says is designed to review evidence against those being held.

According to a story published in The Boston Globe, the military's failure to release all of those who were cleared to leave -- combined with the fact that dozens of other inmates who were not cleared have nonetheless been released -- has led many inmates and their lawyers to contend that the system is a sham, and that the real decisions are being made elsewhere.

The military contends that most of the cleared inmates remain in custody because of difficulties in negotiating terms of their release to their home countries. But officials also acknowledge that the hearings are not the final decision on an inmate's fate, and that the Pentagon retains the power to hold even those who have been cleared by the three-officer panels who review the inmates' cases.

The system of hearings was enacted after the U.S. Supreme Court insisted inmates be given a chance to present evidence and argue for their release. The court did not specify what procedures should be used, but required that prisoners get a chance to argue for their freedom.

Next month, the U.S. Supreme Court will review the system and the fairness of the hearings will be a major point of contention. According to Pentagon statistics, 10 percent of the prisoners chose to attend their hearings this year. In 2004, more than 60 percent had chosen to attend. The dramatic falloff, lawyers say, is because the inmates do not trust the system.

One observer said it is extremely difficult to trust a system that invades foreign countries and violates international law, bombing their homes, killing their people, imprisoning thousands for months or years without cause, carrying out torture and incarcerating prisoners without charge for years on end.

Shaynan Kadidal, a senior attorney at the Center for Constitutional Rights, which coordinates the defense of the detainees, said of the review-board system: "It's creating a semblance of a process and the illusion that the military has a systematic way of determining who gets released."

Under the system, all inmates receive an initial hearing that determines whether they should be classified as "enemy combatants." Afterward, they receive annual reviews before panels made up of three military officers to determine if they are still a threat to the United States. Inmates are invited to submit any new evidence that has emerged as to their level of dangerousness.

The hearings take place in austere trailers without lawyers and almost always without media present. Afterward, the panel issues a "determination" about whether a detainee should be held for another year or transferred to another country. The prisoners can be set free or transferred to their native countries for possible prosecution. The problem is that many of the prisoners are not allowed to leave Guantánamo.

The review hearings, which began in December 2004, serve as the only opportunity for the vast majority of detainees to contest their imprisonment, since only three of the more than 300 detainees have been formally charged with a crime. After the first round of review hearings in 2005, the Pentagon cleared 133 detainees, according to a list posted on the Pentagon's website in September. About 40 of them remain in custody, according to the Center for Constitutional Rights.

Defense lawyers say they believe the review hearings are designed to give the impression of due process, while the real decisions are made through a separate process in which the foreign policy interests of the United States and other countries takes precedence over justice. They say that the detainees are being denied their right to contest their detentions before an impartial decision maker, as the Supreme Court ordered in 2004. One attorney from Boston, Lynne Soutter, who is involved in the latest Supreme Court challenge, said that the annual hearings are nothing more than "window dressing."
(Radio Habana Cuba)

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