The unorthodox legal processes governing detainees at Guantánamo are ill-suited to the familiar legal terminology of a trial. For the first two years that Guantánamo operated, the administration was able to prevent inmates from having access to any kind of legal forum at all, including Article 5 hearings under the Geneva Conventions (historically used by the military to determine whether a detainee is a legitimate prisoner of war) or habeas corpus review in a U.S. court. When the Supreme Court pronounced this state of affairs unconstitutional in June 2004, the administration devised special panels for detainees: a Combat Status Review Tribunal, or CSRT, to review whether a detainee’s “enemy combatant” status was justified; followed by an Administrative Review Board, or ARB, an annual assessment of whether the detainee still belonged at Guantánamo. But those forums bear little resemblance to trials. They begin with the assumption that the detainee’s enemy combatant label is correct. Instead of charging a detainee with violations of international or national law, military officers present an “Unclassified Summary of Evidence,” which is assumed to be accurate. The detainee and his lawyer (if he has one) are rarely permitted to see the evidence itself, if at all. Nor can the lawyer attend the hearing (the detainee is instead provided with a military representative, who is obliged to tell the panel of any useful information he learns about the detainee in the process of helping him prepare). So far the written summaries in al-Haj’s CSRTs and ARBs are the only formal information Stafford Smith has about why his client is being detained in Guantánamo.
The accusation that al-Haj had filmed Osama bin Laden did not resurface in the unclassified evidence described to al-Haj in the three hearings he has had. Instead, the allegations against him have evolved over time. In his status review, held in late 2004, military officials said al-Haj had gone to Afghanistan to buy Stinger missiles to fight in Chechnya, a charge that has since been dropped. Then, he was alleged to have sought the missiles in 1996, although Stafford Smith says he can prove that al-Haj was in the United Arab Emirates every day of that year.
An administrative review the following year offered a rather confusing string of contentions. There’s a claim that between 1997 and 1999, al-Haj delivered several hundred thousand dollars from the United Beverage Company to the Azerbaijan branch of Al Haramayn, an Islamic charity sometimes described as the “United Way of Saudi Arabia.” Several branches of Al Haramayn (although not the one in Azerbaijan) were designated by the U.S. Treasury after 9/11 as providing financial support to Al Qaeda. Stafford Smith said al-Haj simply delivered the money on his employer’s instructions and declared it to customs, unaware that part of the sum later made its way to an organization that supported the Chechens in 1999. Al-Haj is also said to have “met” a senior Al Qaeda lieutenant, Mamdouh Mahmoud Salim, while working at the Union Beverage Company, according to an Associated Press report. (The AP reported that al-Haj once picked Salim and his family up from the airport on behalf of his boss.) There’s also a reference to documents from al-Haj’s personal business, called Samico Services, being found “during a raid of locations occupied by suspected extremists affiliated with . . . an Egyptian extremist” in an unspecified country. “Neither I nor Sami have any idea what this is about,” Stafford Smith told me. He said that one of the allegations—that al-Haj lied on a business form establishing Samico Services, saying he was also the co-owner of another business—is “true but totally irrelevant.”