This Was A Trial?

Published on
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The International Herald Tribune

This Was A Trial?

by
Jennifer Daskal

GUANTÃÂNAMO BAY, Cuba:

While the Bush administration might try to paint the guilty plea by David Hicks plea as a triumph, the truth is that the Australian's conviction shows in painful detail just how illegitimate and dysfunctional the military commissions truly are.

Five years after Guantánamo was opened to take detainees in the "war on terror," the victims of the Sept. 11 attacks are no closer to seeing justice done. The military commissions were supposed to prosecute the "worst of the worst;" instead, the very first conviction was for a mere nine months of continued incarceration, which would have been a slap on the wrist in the federal justice system that they abandoned as inadequate.

Last Monday, Hicks, clean-shaven and long-haired, entered the brand-new, air-conditioned courtroom, escorted by two U.S. Army sergeants, and sat down in front of his parents, who had met with him earlier that day for the first time in over a year.

Hicks began the day with three lawyers - his military defense counsel, Major Dan Mori, and two civilians - but within hours he was down to one and pleading guilty to a single count of material support for terrorism, a crime that is normally prosecuted in federal court.

First to go was the assistant defense counsel. The judge, Ralph Kohlmann, unsure whether a civilian government employee could serve as defense counsel, decided not to give the defendant the benefit of the doubt and provisionally dismissed her.

The response from Hicks: "From my understanding, I just lost a lawyer."

Next up was Joshua Dratel, chief defense counsel for Hicks for several years. He was also dismissed by the judge, because while he agreed to abide by all "existent" rules, he refused to agree to "all" rules for the tribunal without first knowing what those rules stated. "I'm shocked because I just lost another lawyer," said Hicks, and counsel number two left the courtroom.

The judge then rejected the remaining defense attorney's request for more time to file motions. This judge would give Major Mori just 13 days to prepare file all legal motions in a totally new system with specially created rules and regulations - and even new crimes.

A highlight of the day was the judge's fashion lesson, when he explained the nuances of "business dress" to Hicks, who was wearing a short-sleeved khaki prison garb. The judge suggested the former kangaroo skinner choose his preferred combination of jacket, tie, and button down shirt before the next proceeding: Such proper attire would ensure that Hicks was adequately protected by the presumption of innocence.

But if Hicks, already detained for over five years, thought that this presumption carried little weight, who could really argue? After all, he had just watched his two civilian defense counsels barred from representing him, and every substantive motion denied in proceedings that had barely begun. He might reasonably have wondered what chance he had of receiving a fair trial when judge, jury and remaining counsel all report to the same executive that once lumped him together with the "vicious enemies" and "killers" housed at Guantánamo Bay.

A few minutes before 9 p.m., Hicks entered a plea of guilty - apparently choosing not to test his fate in a system that deems statements obtained through severe physical abuse an acceptable form of evidence.

And, four days later, the court disclosed a plea agreement that appeared to be more about protecting the government against disclosure of abuse than prosecuting any alleged terrorist. In exchange for a sentence of nine months incarceration, the government extracted a statement that Hicks had not been subjected to "illegal" treatment. This is a concession that means little for a government that interpreted waterboarding (mock drowning) as compliant with U.S. and international law at the time of Hicks' arrest. Moreover, the agreement includes a one-year gag rule - a provision that serves the sole purpose of hiding the very conduct the United States denies.

The U.S. secretary of defense, Robert Gates, has urged President George W. Bush to move the Guantánamo Bay detainees to the United States, warning that any proceedings held in Guantánamo will be viewed as illegitimate in a way that could further undermine the broader war effort. This latest proceedings do little to assuage those fears.

The president should listen to his defense secretary's advice. He should charge the detainees in federal court, where established rules and procedures will give the trials the legitimacy needed to restore the reputation of the United States as a leading proponent of the rule of law. Doing so would focus the world's attention on the alleged crimes of the detainees, rather than the flaws of the system.

Jennifer Daskal, advocacy director for the U.S. program at Human Rights Watch, was in Guantánamo Bay monitoring the Hicks military commission proceedings.

Copyright © 2007 The International Herald Tribune

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