Justice or Show Trials for Inmates of Gitmo?

17 February 2008

by William Fisher

As the US moves toward the death-sentence trials of six suspected terrorists at Guantanamo Bay, legal scholars and human rights advocates are raising questions not only about the process that led to the prosecutions but also about the Bush administration’s motives in bringing the charges now and the credibility of the trials themselves. The charges filed against the six, including alleged Sept. 11 mastermind Khalid Sheikh Mohammed, outline a litany of war crimes and include conspiracy, murder, attacking civilians, terrorism and supporting terrorism. All six suspects are being held at Guantanamo Bay, and the military plans to try the six together. If convicted, they would likely be executed at Guantanamo.

Before being shipped to Guantanamo, five of the defendants were held without charges or legal representation by the US Central Intelligence Agency in secret prisons in Eastern Europe and elsewhere and reportedly subjected to torture. The Bush administration has acknowledged that at least one of the defendants, Mohammed, the reported “mastermind” of the Sept. 11, 2001 attack on the World Trade Center and Pentagon, was subjected to “waterboarding” while in custody. Waterboarding, a technique that simulates drowning, has been acknowledged as torture for hundreds of years. During World War II, US authorities prosecuted Japanese soldiers for using the practice against American prisoners of war.

Military authorities have declared that no evidence obtained through torture will be used at the trials. But many legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can convict the six without using evidence obtained through torture. Horton believes the process used to establish the Military Commissions — criminal courts run by the US armed forces — is likely to result in “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.

Michael Ratner, president of the Center for Constitutional Rights (CCR), a New York-based legal advocacy group, which represents one of the defendants, Mohammad Al— Qahtani, says the Military Commission system “has none of the guarantees of regular trials. “

Many military lawyers have expressed similar views. For example, the head prosecutor at Guantلnamo, Col. Morris Davis, resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system. And lifelong Republican John Hutson, a retired judge advocate general, has expressed increasing frustration with the Bush administration’s treatment of detainees at Guantanamo Bay.

The procedures of the military commissions have been repeatedly challenged in US civilian courts, resulting in a number of stinging defeats for the Bush administration and contributing to the delays in beginning prosecutions. The legal saga began in 2001, when President Bush issued an executive order establishing military commissions to try those captured in the “war on terror.” But in 2004, a federal judge ruled that Salim Hamdan — accused of being a driver of Osama bin Laden — could not be tried by a commission established by an executive order. Only an act of Congress, the court suggested, could be legal. So in December 2005, a Republican-controlled Congress passed the Detainee Treatment Act of 2005 (DTA). It stripped US courts of jurisdiction over habeas corpus petitions filed on behalf of Guantلnamo detainees challenging the reason for their detention and vested exclusive review of final decisions of military commissions in a single circuit court. A year later, an appeals court overturned the Hamdan decision. And a year after that, the Supreme Court reversed the appeals court decision.

The High Court ruled that military commissions, as defined under the president’s executive order, violated military law and the Geneva Conventions. Congress then hurriedly enacted the Military Commissions Act of 2005, which President Bush signed into law in early 2006. That law, which is still under challenge in the courts, became the basis of the current prosecutions.

Concern about the credibility of the US has also been voiced by many American legal scholars. David Cole, one of America’s pre-eminent constitutional authorities, says: “For better or worse, the US is a world leader on matters of human rights. When the US violates human rights in the fight against terrorism, it sends a message to autocrats and dictators worldwide that they, too, can deny human rights in the name of counterterrorism.”