BLUMNER
BLUMNER |
In the 1660s, England's Lord Clarendon was in the habit of sending prisoners to remote islands and military garrisons in order to put them out of reach of the due process protections afforded by English courts. For these misdeeds, Clarendon was impeached, and in 1679 Parliament passed the Habeas Corpus Act which made it illegal to ship prisoners away to deprive them of their rights.
It appears the Bush administration never got that memo.
According to a friend-of-the-court brief filed in the U.S. Supreme Court by a group of military lawyers who have been assigned as defense counsel for prisoners held at the U.S. naval base in Guantanamo Bay, Cuba, Clarendon's effort to evade habeas corpus is the closest and most recent precedent to what the Bush administration is doing in Guantanamo today.
"So far as (we are) aware, the American government has never before consciously created a trial process, courtroom, and other accoutrements of judicial process outside the battlefield and housed them all in an area calculated to divest civilian jurisdiction," the attorneys wrote.
The Guantanamo Bay facility was erected for its location - off American soil - because the Bush administration believed that this would keep prisoners held there from having access to the American court system. The belief stemmed from a wrongheaded ruling by the U.S. Supreme Court in 1950.
On April 20, the administration will be before the Supreme Court arguing in cases brought by two groups of Guantanamo detainees that by situating the prison camp overseas the estimated 610 Taliban and war-on-terror detainees that are there now are entirely subordinated to the executive branch.
"The government's argument in this case has no logical stopping point," the military attorneys' brief continues. "If there is no right to civilian review, the government is free to conduct sham trials and condemn to death those who do nothing more than pray to Allah."
"Sham trials" are undoubtedly the point.
Though it took more than two years for some formal process to come to Guantanamo, trials before military tribunals are expected to begin this summer. But the rules laid out for these commissions are about as impartial as a Russian figure-skating judge.
Two suspected al-Qaida operatives held at Guantanamo - Ibrahim Ahmed Mahmoud al Qosi of Sudan, and Ali Hamza Ahmed Sulayman al Bahlul of Yemen - are the first to have been charged as confederates of Osama bin Laden. Four others have been designated to face trial, but hundreds of others could conceivably have a turn as well.
Rather than have their fate determined by an American criminal court like John Walker Lindh, the Lackawanna Six and Sept. 11 suspect Zacarias Moussaoui, they are to be tried under new rules created by the White House.
The president's Military Order of Nov. 13, 2001, outlined the use of military commissions to try terror suspects. In that order, Bush promised the trials would be "full and fair." But it was doublespeak. What he really meant was "biased and stacked."
The commission process is to be controlled by the Defense Department, which will choose the trial judges as well as those who will hear any appeal - and appellate review panels can be handpicked for each case. Defendants may face the death penalty, but will have no access to the civilian courts to challenge the fairness of their trial.
This is in direct contravention of the Geneva Conventions that make clear that prisoners of war facing military tribunals are to be afforded the same appeal process provided "the members of the Armed Forces of the Detaining Power." Our soldiers facing court martial are entitled to a direct appeal to the Court of Appeals for the Armed Forces, a civilian court not under the control of the Defense Department, and then may try to get their case heard by the U.S. Supreme Court.
If the administration wants to claim (as it has) that the Guantanamo prisoners are not POWs then the alternative is to label them civilians who should be tried in American criminal courts. They are either combatants who can be tried for war crimes or they are criminals who have committed heinous acts of violence. Either way there are procedures already in place and vetted for generations to deal with bringing such wrongdoers to justice. But the Bush administration is doing something unprecedented, creating a third category of offenders - unlawful enemy combatant - to be tried under an entirely new legal regime, stripped of traditional rights.
Access to evidence is another example of the one-sidedness written into the tribunal rules. Even evidence that tends to demonstrate a defendant's innocence can be kept from the defense if there are national security reasons to do so. And while the prosecutor is given specific authority to issue subpoenas for witnesses, the defense is given no such power.
Wait. Here's the kicker: If by some fluke, a defendant can overcome this unequal justice and is acquitted of the charges, he can still be imprisoned indefinitely. The Defense Department has said it reserves the right to hold any detainee - even those found not guilty - for the duration of the war on terrorism.
We know at least 130 Guantanamo prisoners have been returned to their home countries, most to be released there. So, as it turns out, not every prisoner was among the "worst of the worst" as had been asserted by the Pentagon. Obviously, there have been mistakes made; and moving forward with a tribunal procedure so flawed as to be worthless would be another. Lord Clarendon's ghost may be smiling, but James Madison is turning over in his grave.