En Route to Guantanamo: Mukasey on My Mind

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Deborah Colson – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

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February 1, 2008
En Route to Guantanamo: Mukasey on My Mind
Attorney General Mukasey’s refusal this week to declare waterboarding illegal is still ringing in my ears as I prepare to board a military flight on Saturday en route to Guántanamo Bay. Waterboarding, which dates back to the Spanish Inquisition, causes the physical agony of drowning or suffocation, and creates a fear of imminent death. Our nation’s top military lawyers call it torture. So does former Homeland Security Secretary Tom Ridge. So does the director of national intelligence, Mike McConnell. And so even does Mr. Mukasey, were it to be performed on him. However, when asked about waterboarding others, Mr. Mukasey continues to equivocate.

Next Week’s Line Up
I am traveling to Guántanamo on behalf of Human Rights First to observe two military tribunal hearings. On Monday, February 4, proceedings continue in the case of Omar Khadr, a twenty-one year old Canadian accused of throwing a grenade that killed a U.S. solider in Afghanistan in 2002. On Thursday, February 7, a hearing will be held in the case of Yemeni national Salim Ahmed Hamdan, the alleged bodyguard and driver for Osama bin Laden.
Both men have repeatedly captured headlines. Khadr was a child soldier — just fifteen years old — when he was apprehended by the U.S. military, and he has spent more than a quarter of his life at Guántanamo, now in his sixth year there. Hamdan’s challenge to the original military commission process made it all the way to the Supreme Court, where he won.
The military commissions next week will consider the men’s legal motions. Khadr has moved to dismiss his case on several grounds, including that he’s accused of murdering a soldier — not a civilian — and killing a combatant during armed conflict isn’t a crime. Khadr also contends that the other charges filed against him (conspiracy, providing material support for terrorism, and spying) are not crimes under the law of war and were not crimes under applicable U.S. law when he was on the battlefield.
Hamdan has sought access to other Guántanamo detainees who were previously in CIA custody and are currently being held in seclusion at a site called Camp 7.
Evidentiary Abuse
I will discuss the intricacies of these motions in next week’s posts once I’ve heard the lawyers’ oral arguments. Given the Attorney General’s testimony this week, though, I can’t help but focus now on another feature of the Khadr and Hamdan cases: Both men have made allegations of repeated abuse and cruel treatment at the hands of U.S. interrogators.
Khadr and Hamdan are not the only detainees at Guántanamo whose cases raise questions of abuse. News reports have revealed the CIA’s use of harsh techniques such as sleep deprivation, beating, sexual humiliation and stress positions on multiple other Guántanamo detainees. John Negroponte, the first U.S. director of national intelligence, has confirmed that waterboarding used to be part of the CIA program. And former CIA agent John Kiriakou has publicly acknowledged that at least two Guántanamo detainees, Abu Zubaydah and Khalid Sheikh Mohammed, were waterboarded.
Many experts question whether those who were abused can ever be tried. But, if some of these cases do proceed to trial, the military tribunals will be called upon to decide whether statements and confessions made following abuse are admissible.
Before joining Human Rights First, I practiced criminal law in Massachusetts and New York for 10 years, so I am accustomed to the laws governing civilian criminal courts. Those laws prohibit the use of involuntary statements, including statements obtained through physical intimidation or abuse. It is an unequivocal prohibition, which has been in effect for more than 200 years. The Supreme Court says coerced confessions are unreliable and inconsistent with basic American principles of fair play and justice.
The Military Commissions Act (“MCA”), the law governing the military commission proceedings at Guántanamo Bay, says something quite different. It says that confessions elicited through “cruel, inhuman or degrading treatment” are admissible under certain circumstances so long as the confessions were obtained prior to December 31, 2005, when the law was passed. Confessions extracted through “torture” are inadmissible under the MCA.
What does this mean for waterboarding and the other CIA techniques? Well, if waterboarding is torture, then confessions elicited through waterboarding are inadmissible in Guántanamo’s courtrooms. But, if waterboarding is just “cruel, inhuman or degrading treatment,” those same confessions may come in to evidence.
If this kind of distinction seems hard to justify, you may be wondering how we got here. Congress passed the MCA in October 2006, under pressure from the Bush administration – pressure which stemmed in part from the need to accommodate the CIA’s use of cruel techniques. Rather than repudiate the CIA’s methods, or even accept the legal inadmissibility of the evidence obtained, the administration instead sought to legitimize the CIA’s program. Hence, reversing course on more than 200 years of American history, Congress approved the coerced evidence provisions of the MCA.
Mr. Mukasey, now the nation’s chief lawyer, could have put some controversy to rest this week by acknowledging that waterboarding is torture under any and all circumstances. His insistence on sidestepping the issue, and his refusal to rule out waterboarding as a future interrogation technique, ensure protracted litigation over the meaning of “torture” in the MCA.
The coerced evidence provisions are not the only disturbing aspect of the MCA. The statute also denies – or tries to, in any event – Guántanamo detainees other important procedural protections, including, for example, the right to be free from ex post facto laws (statutes outlawing conduct which are enacted only after the conduct occurs) and the right to habeas corpus (a challenge to the government’s justification for detention, with the assistance of counsel, before a neutral court).
Time for Change
Outraged by this administration’s brazen attempts to ignore clearly established legal principles, and embarrassed by Guántanamo’s black mark on America’s international reputation, many legal, military and intelligence experts have recognized the need for change. The question is where we go from here. In the months ahead, we are likely to hear various proposals, ranging from “tweaking” the military commission process, to inventing a system of administrative detention, to creating new national security courts.
The government says it intends to try approximately 80 of the remaining Guantanamo detainees. Eighty trials seem unlikely. Guantanamo just “celebrated” its sixth anniversary and, so far, only four men, including Khadr and Hamdan, have been formally charged. But at least some detainees will probably be tried. Human Rights First advocates trying suspected terrorists in civilian criminal courts, or by courts-martial applying the proven rules and procedures of the federal criminal justice system or the Uniform Code of Military Justice. But whatever system our government settles upon, it must be one that condemns torture, prohibits the introduction of coerced evidence, and meets basic fair trial standards. Only then will Attorney General Mukasey’s words stop ringing in my ears.