[News] Justice At Guantanamo?

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Mon Jun 6 15:42:03 EDT 2005

Justice At Guantanamo?
June 5, 2005

Two months after 9/11, President Bush issued a military order that said 
that any foreigner he believes might be a terrorist or might help a 
terrorist could be tried for war crimes by military commissions.

Last used during World War II, the commissions are designed to deliver 
swift, effective punishment, but they dispense with some of the basic 
rights and rules of evidence that protect the innocent in American courts.

And that’s raised concern both abroad and at home. So far, only four of 
more than 500 prisoners being held at Guantanamo Bay, Cuba, have been 
charged with war crimes. And so far there have been no military trials. 
They have been shut down because of a suit filed against the president by a 
member of what may seem like an unlikely group of opponents: U.S. military 
lawyers. Correspondent Ed Bradley reports.

Navy Lt. Cmdr. Charlie Swift is one of the team of military lawyers 
appointed by the Pentagon to defend those accused of being the nation’s 
worst enemies.

Does he believe that the prisoners in Guantanamo are getting a fair shake? 
"Under the rules, as they’re written right now, no way," says Swift. "The 
rules are written from the -- to make every possible accommodation for the 
prosecutor, with no thought to, 'Does this jeopardize a right of the 

Swift represents Salim Hamdan, a Yemeni and one of Osama bin Laden’s former 
drivers, an accused al Qaeda terrorist charged with plotting to attack 
American civilians. Swift says Hamdan is not an al Qaeda terrorist, but an 
innocent bystander in the Sept. 11 attacks.

Did Hamdan not know that bin Laden was a terrorist? "He had heard news 
reports," says Swift. "But for him, he was an employer."

"So he was his driver, but wasn’t a member of al Qaeda?" asks Bradley.

"Absolutely not," says Swift, who adds that Hamdan didn't receive any 
military training.

"You said that your client was in a compound with bin Laden on Sept. 11. 
What does he say about that day?" asks Bradley.

"He heard about 9/11 on an Afghan radio, and when he saw Osama bin Laden 
dancing and happy, and he put the two together, he realized that war was 
coming and that he had gotten sucked into this thing," says Swift.

Prosecutors won’t discuss their case against Hamdan, but in court papers, 
they say he did receive military training at an al Qaeda camp and also 
delivered weapons. Hamdan has been held without trial in Guantanamo for 
more than three years.

Even though the military order prohibits any appeal to an outside court, 
Swift filed a historic lawsuit against President Bush and Defense Secretary 
Rumsfeld, saying the commissions are illegal.

"You disobeyed your commander-in-chief," says Bradley.

"Yeah, I did," says Swift. "But I didn't do so lightly. I did it because 
there was no other choice."

Last November, a federal judge agreed with Swift, ruling the commissions 
are unlawful because they are “fatally contrary” to established standards 
of justice. The government is appealing.

Brad Berenson, a former White House lawyer who helped draft the president’s 
order, says that during wartime, it’s not practical to apply those standards.

"When you’re raiding a safe house in Kabul and seizing computer hard drives 
and documents from an al Qaeda hideout, it’s just not realistic to treat 
that as a crime scene. I’ll give you another example," says Berenson.

"Entire cases against terrorists may be built based on intelligence 
information obtained from foreign intelligence services that would be 
inadmissible in a U.S. courtroom. So you can see there are enormous 
practical obstacles to trying foreign terrorists if you have to abide by 
the normal rules that apply to U.S. citizens."

Lt. Col. Sharon Shaffer, a former Air Force judge, says those rules 
guarantee a fair trial. She has also filed suit against the president and 
the commissions. "Rules and procedures apply, rights apply, and those 
standards can’t be ignored," says Shaffer.

Shaffer represents Ibrahim al Gosi, a Sudanese accountant also accused of 
being an al Qaeda member plotting to attack civilians. The government says 
al Gosi helped handle al Qaeda’s finances, fought in Chechnya and was a 
driver, bodyguard and cook for bin Laden in Afghanistan and Pakistan. 
Shaffer will not discuss the specifics of al Gosi’s case but denies the 
charges against him.

"My client does not believe that he will get a fair trial," says Shaffer, 
who gave up an offer to become deputy chief judge of the Air Force to work 
on the defense team. She says she’s been called a traitor for her efforts.

"Different people have been mandated to defend freedom in different ways, 
whether you’re out in the field carrying a weapon or whether you’re 
guarding Camp Delta down at Guantanamo Bay, Cuba," says Shaffer. "I am 
defending America and its principles and its notions of liberty and justice."

Her boss, Air Force Col. Will Gunn, the chief defense counsel, says he 
warned his team they may face criticism for doing their jobs.

"There will be people who won’t be able to understand why we’re doing what 
we’re doing. Why are we holding these people down in Guantanamo? We should 
have just lined them up and shot them," says Gunn. "I believe that if they 
really think about what they’re saying, that that’s not the response that 
we want as a nation."

Gunn, a graduate of the Air Force Academy, Harvard Law School, and a former 
White House fellow, says the defense team believes that the existing rules 
of federal courts or courts martial can handle the challenges of trying 
alleged terrorists while preserving their rights.

"We have a system, we have a system of justice. We hold ourselves up as the 
greatest nation on earth, because we say we are controlled by law as 
opposed to men," says Gunn. "If we can stand by that, but also live it out 
when we’re threatened, then we’ve done a great thing."

But Berenson says when the country is threatened, that’s when we have to be 
flexible and realistic so we can convict terrorists and prevent them from 
attacking again.

"When you’re talking about a war, the paramount concern must be the 
preservation of our own society," says Berenson. "All of our liberties, all 
of our freedoms, ultimately depend on that. You cannot be as solicitous of 
the rights of those accused of war crimes as you are of those accused of 
ordinary crimes."

The war crimes trials, if they proceed, will take place in this courthouse 
at Guantanamo Bay. Under the military commission rules, the defendant is 
presumed innocent until proven guilty beyond a reasonable doubt. Up to 
seven military officers appointed by the Pentagon will act as both judge 
and jury. Instead of a unanimous verdict to convict, it takes only a 
two-thirds majority. The death penalty requires a unanimous verdict from a 
full, seven-member panel. Appeals can be made to a panel appointed by the 
secretary of defense, but the president has the final say.

Lt. Col. John Einwechter, a commission prosecutor, defends the commissions 
and says they should go forward.

"I’ve got your colleagues, in uniform, telling me that, 'We’ve looked at 
the rules, we’ve looked at the laws. These aren’t fair trials,'" says Bradley.

"That is the function of the defense counsel. And I think, if anything, 
their comments regarding the system show that they are truly independent," 
says Einwechter. "But what the critics need to do is allow this process to 
work, watch it in operation, and what they will see are fair trials that 
bear resemblance to a trial that they’re accustomed to."

In most trials, defendants have a right to see all the evidence against 
them. But in a military commission, although the defense attorneys can see 
classified evidence, they can’t discuss it with their clients.

"How is he then supposed to defend himself?" asks Bradley.

"There will be circumstances in which classified evidence will be presented 
that the accused will not be given access to," says Einwechter. "Remember, 
al Qaeda continues out there to plot against the United States and to plot 
terrorist attacks against our country. It’s essential that we strike a 
balance in a way that preserves our national security, while providing a 
fair trial."

How does that affect his defense? "Well, it makes it impossible. How you do 
cross-examination is you look to your client and say, 'Did you ever meet 
that man? Does he like you? Does he dislike you? Are there things that he’s 
saying that aren’t true?'" asks Einwechter. "What they do here is they make 
a mockery of what defending a man is."

The rules permit hearsay evidence, unsworn statements ands even statements 
taken under duress. The standard is any evidence the panel considers 
relevant and reasonable.

"That leaves a huge hole as to what types of evidence will come in, whether 
or not it was taken or obtained via some sort of coercion, mistreatment or 
even torture for that matter," says Shaffer.

"If there is evidence such as a confession that is obtained by torture, 
that is suspect, or that is tainted, it’s up to the judges on the 
commission to consider the extent to which it’s suspect or tainted, and 
give it appropriate weight accordingly," says Berenson.

And then there’s this: if a defendant is acquitted, he can still be sent 
back to detention at Guantanamo Bay until the war on terror is over, which 
may be decades.

"If your client is ultimately acquitted, and then, just to be told that 
they’re going to continue to be detained, the question you ask is, then 
what is this all about? What is this for?" asks Shaffer.

"If Salim wins, does he get anything? No, he goes back to the same cell. So 
it seems awfully a lot for show, doesn’t it?" says Swift.

"Is that fair? I mean, they come in, they’re found not guilty, by your 
rules. Why shouldn’t they walk?" asks Bradley.

"If you’re acquitted by a military commission proceeding, it may mean that 
you are not a war criminal," says Berenson. "It doesn’t mean that you’re 
not an enemy combatant who can be held by our forces until the end of 

"One defense lawyer said that these are just political trials, show 
trials," says Bradley.

"No, I think that’s grossly unfair to our military. These are not show 
trials, this is not drumhead justice," says Berenson. "These are going to 
be full and fair proceedings in the context of war. Different in some 
important respects from the ordinary criminal trial that we’re all used to, 
but tailored to the exigencies of wartime."

But right now, the courts will decide if the president has the power to 
tailor justice for the nation’s enemies in wartime.

Does Berenson think the courts are telling the president how to wage war? 
"I think the courts at this point are interfering far too much in the 
conduct of war, with consequences that could be very, very dangerous for 
the country," says Berenson.

"The federal courts aren’t intruding into the president’s power. The 
president is intruding into the court’s power," says Swift. "As a military 
officer, I don’t question the president’s ability to fight and win a war. 
That’s not what the president is talking about here. What the president’s 
talking about is handing out criminal sanctions, including the death 
penalty, to people who are already prisoners. He’s not talking about 
fighting. He’s talking about justice. And now what the government is saying 
is, “don’t you dare intrude into the president’s powers to hand out justice.”

What’s at stake with these commissions for both the country and the war on 

"What's at stake, ultimately, is this country’s ability effectively to wage 
war against the people who are now our enemies," says Berenson. "If someone 
were to wave a wand tomorrow and say that every captured al Qaeda terrorist 
is entitled to be treated as a criminal defendant in our normal civilian 
justice system, I think it would be a serious blow to our efforts to 
prosecute and win this war."

"And if that is indeed what happens as a result of what these defense 
lawyers are doing?" asks Bradley. "I mean, they’ve stopped this thing in 
its tracks. What do you do?"

"Then the executive branch is going to have to go back to the drawing board 
and try to determine what changes they need to make to protect this country 
without violating what the courts have told us is the law," says Berenson.

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