[Ppnews] 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 thats 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 nations
Does he believe that the prisoners in Guantanamo are getting a fair shake?
"Under the rules, as theyre 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 Ladens 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 wasnt a member of al Qaeda?" asks Bradley.
"Absolutely not," says Swift, who adds that Hamdan didn't receive any
"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 wont 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 presidents
order, says that during wartime, its not practical to apply those standards.
"When youre raiding a safe house in Kabul and seizing computer hard drives
and documents from an al Qaeda hideout, its just not realistic to treat
that as a crime scene. Ill 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 cant 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 Qaedas 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 Gosis 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 shes been called a traitor for her efforts.
"Different people have been mandated to defend freedom in different ways,
whether youre out in the field carrying a weapon or whether youre
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 wont be able to understand why were doing what
were 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 theyre saying, that thats 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 were threatened, then weve done a great thing."
But Berenson says when the country is threatened, thats when we have to be
flexible and realistic so we can convict terrorists and prevent them from
"When youre 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
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.
"Ive got your colleagues, in uniform, telling me that, 'Weve looked at
the rules, weve looked at the laws. These arent 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 theyre 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 cant 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. Its essential that we strike a
balance in a way that preserves our national security, while providing a
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 hes
saying that arent 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, its up to the judges on the
commission to consider the extent to which its suspect or tainted, and
give it appropriate weight accordingly," says Berenson.
And then theres 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
theyre 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, doesnt it?" says Swift.
"Is that fair? I mean, they come in, theyre found not guilty, by your
rules. Why shouldnt they walk?" asks Bradley.
"If youre acquitted by a military commission proceeding, it may mean that
you are not a war criminal," says Berenson. "It doesnt mean that youre
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 thats 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 were 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 nations 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 arent intruding into the presidents power. The
president is intruding into the courts power," says Swift. "As a military
officer, I dont question the presidents ability to fight and win a war.
Thats not what the president is talking about here. What the presidents
talking about is handing out criminal sanctions, including the death
penalty, to people who are already prisoners. Hes not talking about
fighting. Hes talking about justice. And now what the government is saying
is, dont you dare intrude into the presidents powers to hand out justice.
Whats at stake with these commissions for both the country and the war on
"What's at stake, ultimately, is this countrys 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, theyve 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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