Published on Monday, November 8, 2004 by OneWorld.net
Guantanamo Military Commissions Continue Down Rocky Path
WASHINGTON – While Americans spent the latter part of last week absorbing the implications of President George W. Bush’s reelection, human-rights observers at the first of the long-awaited military tribunals of terrorism suspects at the Guantanamo Bay naval base said their fears of an arbitrary process appear increasingly well-founded.
By the end of the week, New York-based Human Rights Watch (HRW) reiterated its call for the tribunals to be dissolved and for the administration to instead bring any prosecutions before the federal courts of courts-martial that are subject to military law, instead of the ad hoc procedures which, according to major international rights groups, fall far short of international standards for minimum due process.
It noted that the tribunal’s three commissioners – who are supposed to decide the fate of those brought before them – had grappled over three days with testimony regarding the elementary laws of war and international criminal justice for which none of them had any training or experience. This was particularly true, according to HRW, for the two members of the tribunal who have had no legal training at all.
“It’s astonishing that the United States should try a case of historic importance with officials who are struggling to grasp basic legal concepts,” said James Ross, HRW’s senior legal advisor, who is the group’s observer at the hearings. “Real courts with real judges should be trying these complex cases, not tribunals started from scratch.”
Observers from other human-rights groups that have been permitted to monitor the proceedings expressed similar concerns. Both Amnesty International and Human Rights First (HRF), formerly Lawyers Committee for Human Rights, have observers who are filing daily reports on the proceedings that are posted on their respective websites (www.amnesty.org and www.humanrightsfirst.org.)
Amnesty International said one of the most dramatic moments of the past week came when the prosecution attempted to admit the record of one defendant’s Combatant Status Review Tribunal (CSRT) into the commission’s record.
CSRTs, three-hour hearings that began July 30 after the U.S. Supreme Court ruled that detainees could not be held indefinitely without a chance to challenge their detention in an independent legal process, so far been conducted for 104 detainees who have been denied, however, the right to call witnesses or be represented by an attorney.
“Amnesty International has pointed out that these tribunals in no way represent a substitute for full and proper judicial review, which none of the Guantanamo detainees has had more than four months after the (Supreme Court’s) Rasul decision,” Amnesty said. “Indeed, the organization has expressed its deep concern that the CSRT process may have been devised as an attempt by the government to narrow the scope of any judicial review.”
While the commission put off a decision on whether to admit the CSRT record into evidence – and delayed the trial of the defendant in question, Australian David Hicks, from January until March – the week’s proceedings did not inspire confidence in the fairness of the commissions which have been controversial since they were first announced in November, 2001.
The Bush administration has insisted from the start that suspected terrorists captured on the battlefield were not entitled to protections guaranteed to prisoners of war (POWs) under the Geneva Convention. Under the Convention, POWS must not only be treated humanely but may also challenge the grounds for their detention to an independent body.
In a June decision, a majority of six justices of the U.S. Supreme Court ruled that the 600 foreign terror suspects held at Guantanamo were at least entitled to lawyers and the chance to challenge their detention before an independent tribunal although it was vague about precisely what such a tribunal should consist of.
The Pentagon has taken advantage of that vagueness, both by establishing the CSRTs which virtually all legal experts believe fall far short of the Court’s minimum requirements for independence and by proceeding with the military commissions against selected terror suspects.
In its first hearings late last summer, the commissions, were assailed by observers for, among other things, providing what observers called grossly inadequate interpretation services, as well as insufficient support and resources for defense attorneys.
Defense attorneys also objected to the presumed bias by some of the six commissioners to the tribunal who had played some role in the apprehension or detention of the defendants in Afghanistan and asked that they be excused. Of the six, only one, Col. Peter Brownback III, is a trained attorney.
Last month, Gen. John D. Altenburg, Jr. (ret.), the Military Commission Appointing Authority, agreed to remove three members of the commission in three pending cases. In two of those, he said, he would replace the excused commissioners with new appointees, but he added he would not do so with respect to the case involving Hicks and Salim Hamdan, who allegedly served as a former driver and bodyguard for al Qaeda chief Osama bin Laden.
That ruling raised new questions about the proceedings’ fairness because, under the rules, a two-thirds vote of commissioners is necessary for a conviction. In the case of a standard, five-member commission (plus one alternate), that rule would require a four-vote majority. In the case of a three-member commission, on the other hand, only two commissioners are needed to convict, significantly increasing the prosecution’s advantage.
“It’s good that Gen. Altenburg has acted to address the real appearance of bias,” said HRF’s Deborah Pearlstein after the decision was released, “but it seems that justice is advancing one step forward and two steps backward at Guatanamo.” She noted that Altenburg had provided no explanation for not appointing a full panel in the Hicks and Hamdan cases, a point Amnesty said suggested retaliation against the two defendants’ attorneys for mounting an aggressive defense.
These concerns have now been compounded by the past week’s proceedings, including indications that the two non-lawyer commissioners in the Hicks and Hamdan cases have been unable to grasp basic legal concepts.
HRW noted that the two contested the meaning of ex post facto laws – laws that make criminal actions that were not crimes when they were committed – and the requirement that criminal charges contain a specified criminal offense. At one point, one commission suggested he had little concern than Hicks could be charged with conspiracy to commit a war crime even if such a crime does not now exist under the laws of war.
The group also noted that commission members appeared unfamiliar with the meaning of such basic concepts as an “unprivileged belligerent” – a civilian who takes up arms – and the difference between an international and a non-international armed conflict under the laws of war. Both concepts are critical to establishing jurisdiction over the defendants.
“The hearings in the Hicks case,” said Ross, “resembled an introductory law school class. “A man whose fate is hanging in the balance should not be tried by judges unfamiliarity with the law.”
Moreover, commission members appeared to reject out of hand defense motions to allow expert testimony from six international law scholars competent to testify about the legal issues for consideration by the commission.
When Brownback, the presiding officer, disagreed with a basic point of international law raised by one defense lawyer, he dismissed him with the remark, “No way, sunshine,” a phrase he used against the same attorney later in the hearing. HRW suggested that such conduct is unlikely to enhance confidence in the tribunal.
For its part, Amnesty cited two exchanges between the commissioners and defense attorneys which it said “illustrated the arbitrary nature of these proceedings.”
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