Pre-trial hearings that began Tuesday at the U.S.
military base at Guantanamo Bay, Cuba, of prisoners taken in the U.S. "war
on terrorism" are "designed to convict," says one expert.
The lack of attorney-client confidentiality, absence of an appeals process,
classified testimony and the two and a half years that many detainees have been
held without access to lawyers has produced a legal system tilted against the
defendants, says Michael Ratner, president of the Center
for Constitutional Rights (CCR).
The four suspects arraigned Tuesday include an accountant accused of working
for the al-Qaeda terrorist group, a poet accused of writing terrorist propaganda,
a man alleged to have been the chauffeur for al-Qaeda chief Osama bin Laden
and an Australian who fought with the former ruling regime in Afghanistan, the
Taliban, against U.S. forces.
The Australian, David Hicks, faces the broadest set of charges conspiracy
to commit war crimes, aiding the enemy and attempted murder for firing on coalition
forces in Afghanistan.
International human rights groups and legal scholars have labeled the hearings
"unfair," saying they violate fair process guidelines of both civilian
courts and military court-martials.
The U.S. military tribunal process has not been used since the end of World
During the hearings the detainees will be read the charges against them, given
an opportunity to enter a plea, and their attorneys can make motions.
Several of the defendants were not picked up on the field of battle, therefore,
some observers also argue, should be not be tried as unlawful combatants.
"[The] military system [of justice] would be a court-martial, if they're
a prisoner of war, which would be the same proceedings a U.S. soldier is tried
by," said Ratner, who represented several of the prisoners at hearings
in the U.S. Supreme Court, in an interview.
Adding to the flawed process being used in the hearings, says Ratner, "the
judges are all handpicked."
The Pentagon has argued that detainees captured in Afghanistan after U.S. forces
attacked the country following the Sept. 11, 2001 terrorist attacks on New York
and Washington do not qualify for courts-martial and do not fall under the protection
of the Geneva Conventions because they were not taken while fighting for a regular
Under a military court-martial, defendants are permitted protections and rights
such as the ability to appeal a decision to a civilian court but
the military tribunals in Guantanamo include no such process.
"Courts-martial are a reasonably fair process," said Ratner. "They
can throw out coerced evidence and they can appeal to the civilian criminal
Evidence gleaned over the past two and half years of detention can be used
in the government's case, despite the fact that, for most of their detention,
the detainees had no contact with attorneys.
"They've been in custody for two and a half years without lawyers, so
by definition [their testimony] is coerced," said Ratner.
Hearsay evidence gained from other detainees or informants can also be used
in the tribunal hearings, and the government has defended its right to monitor
conversations between attorneys and their clients, despite committing not to
do so in some cases.
The administration of President George W. Bush has defended the tribunals as
a balance between protecting the country's national security and providing the
defendants with due-process rights.
It has repeatedly pointed out the hearings incorporate many elements of the
U.S. civilian legal system suspects are presumed innocent until proven guilty,
they cannot be forced to testify, and their guilt must be established beyond
a reasonable doubt.
The hearings follow a June 28 Supreme Court decision that found that foreign
"enemy combatants" held at Guantanamo have the right to go to court
to argue that they should never have been detained.
The rulings amounted to an almost total rebuff of the administration's assertions
that the president, as commander-in-chief, had the right to indefinitely detain
individuals whom it designated "enemy combatants" without charges
and without access to counsel or the right to review their status before an
The hearings at Guantanamo will take place largely in secret, and details of
the events are not expected to be made public any time soon.
A statement issued late Tuesday by the American
Civil Liberties Union (ACLU) said that representatives of international
human rights and legal organizations in Guantanamo as observers of the hearings
have not been given satisfactory access to "key participants" in the
"Defense officials declined a joint request by the groups to meet the
presiding officer, prosecution attorneys, military commission translators and
law clerks. Officials also barred the observers from accompanying 53 members
of the national and international press who were granted access to visit detention
facilities at Guantanamo Bay," it said.
Military defense lawyers are expected to attack the legitimacy of the process
and to challenge the rules and procedures as well as the charges against their
The suspected "enemy combatants" arraigned Tuesday will face a maximum
sentence of life in prison, but the commission will have the power to sentence
others to death.
The attorney for Salim Ahmed Hamdan, a 34-year old Yemeni driver for bin Laden,
accused of war crimes, has already spoken out about his lack of contact with
his client and the government's failure to share information with him.
"I've never gone into a hearing with so little information," said
Lt. Cmdr. Charlie Swift, a military defense attorney, in an interview with the
al-Jazeera cable television network.
Several detainees who were recently released from Guantanamo have reported
making false confessions during marathon interrogation sessions, some of which
were reported to run as long as 15 hours.
(Inter Press Service)