Security Detainees/Enemy Combatants

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.

Hina Shamsi – a lawyer at Human Rights First in the 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.

March 23 , 2007

Quick, What Are The First Five Things That Come To Mind When You Think of Guantanamo?

This isn’t a test – don’t think too hard – just note what pops into your head.   

I did this exercise myself in the last couple of days, once the U.S military confirmed that I could go to the U.S. naval base in Guantanamo to observe a hearing in the case of Australian detainee David Hicks.  The hearing is this Monday, March 26.  My organization, Human Rights First, has sent an observer to Guantanamo to report on every hearing since they began in 2004, but this will be my first trip.  I work on related issues daily, but it’s been a while since I thought about what it evokes personally. 

Not unexpectedly, my responses were pretty lawyerly – at the core of each was the concept of Guantanamo as a law-free zone – and I got to wondering what the place evokes for people who don’t work on human rights and civil liberties issues.  So, in a completely random survey that doesn’t aspire even to a pretense of science or impartiality, I got responses to my question from ten friends whose only basis for inclusion is that they called me back within a 24-hour period.  Oh, I tried for geographical diversity (hello Montana, California and Illinois!) and also included an old buddy from North Carolina who identifies himself as a conservative thinker.  I’ll get to the responses, but first, a note about the significance of the Hicks hearing.

Monday’s Significance

David Hicks has been charged with material support for terrorism.  (My post for this blog on Monday will be about the specifics of Mr. Hicks’ case and the parallel proceedings his lawyers in Australia and the U.K. are pursuing.)  It’s likely that the Monday hearing will be pretty mundane:  it is the arraignment at which the charges against Mr. Hicks will be read.  Mr. Hicks will then be asked to make a plea.  The judge may set a schedule for legal motions by both sides and, unless any issues are raised by the prosecution or the defense, that’s likely to be it.  

Still, Monday will be significant for Mr. Hicks’ father, who will see his son for the first time in three years.  The father is already apprehensive and anticipating the emotional toll and stress.  I can’t begin to imagine what a parent in that situation feels like.  But Mr. Hicks at least has seen his son.  The families of most of the approximately 385 detainees still at Guantanamo have not, for more than five years.

The other significance of Monday is that it’s the first military commission hearing to take place since the old system established under an order by President Bush was struck down by the Supreme Court in June 2006 in Hamdan v. Rumsfeld.  Hamdan, of course, is one of the most important Supreme Court decisions on the limits of Presidential power, and the Court made clear that the executive branch must comply with U.S. laws and treaties on fair trials and humane treatment.   Congress then responded with the Military Commissions Act of 2006 (MCA), which the President signed into law in October last year, and which establishes a military trial system that is deeply flawed, but not as much as the old system.  If you want to travel down memory lane to recall just how bad the old system was, here’s HRF’s analysis of it. 

The new military commission system’s proponents say it’s possible to have a fair trial under the MCA – and theoretically, that’s possible, but only if the trial is presided over by heroically ethical judges who don’t do what the law tells them they can.  For example, the law says judges can:

• allow evidence obtained through coercion;

• order that evidence showing the defendant’s innocence or otherwise favorable to his defense be provided only in summary or redacted form, if the government claims it’s classified; and

• try people (including civilians captured far from any battlefield and who may not have committed any terrorist act) for acts that weren’t war crimes when they were committed.

That’s just a start; you can read about some of the other flaws here  (And I don’t have the space here to write about the most distressing aspect of the MCA, its stripping from the Guantanamo detainees the right to challenge the basis for their detention, through habeas corpus, which the Supreme Court recognized in 2004, in Rasul v. Bush.  The habeas-stripping provision is being challenged in cases now heading to the Supreme Court.)   Justice Robert Jackson famously said in his opening statement to the International Military Tribunal at Nuremberg, “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”  We would do well to remember his admonition.

Back to “Guantanamo” 

We know that the administration established the prison there on the theory that it was not U.S. territory and detainees would not be protected by U.S. or international laws requiring due process and humane treatment.  In essence, no law, no protections.  That theory was soundly rejected by the Supreme Court in Rasul, of course, and again in Hamdan.  Also, in large part as a result of the efforts of dedicated lawyers, military and civilian, and also because of legislative measures like the McCain Amendment, improvements have been made (but more on Monday about continuing concerns on detainee treatment).   Still, the administration may have got what it wanted, but not in the way that it wanted it. The reality is that Guantanamo is no longer completely lawless, but that may not matter for perception.

Based only on my (non)survey:

• Every single person referred to torture or abuse as the first or second thing that came to mind about Guantanamo.  Some (most) specifically said “Torture.”  A couple of people reeled off specific techniques, including, to my surprise (a lesson learned about friendship and preconceptions), the metals trader from Delaware who recited: “waterboarding, deprivation, not allowed Korans, forced renditions, forced confession.”

• The next highest category (five people) responded with what I think of as “emotional words”:  “Wrong”, “Abhorrent”, “Horror”, “Frustration” [later explained as frustration with the U.S., that this was happening], “Shaming of America.”

• For about half the people, Guantanamo evoked “military”.  One expanded:  “There’s a social contract between people and the military.  They protect us, in a manner that protects our ideals.  We’re supposed to support them and protect them, not ask them to do things that are immoral or against what this country stands for.”

• The impact on the U.S. and its reputation was another common theme, with four people expressing variations (e.g. “Un-American,” “violation of every principle this country is built on”, “Pariah, I mean the U.S.’s behavior that’s led to international opprobrium, we’re outside the community of nations”).  It was the main response of my conservative friend:  “We stand for the universal rights of man, the idea of the city on a hill. . .[This is] not something Reagan would have approved of.  Not what Americans do.”

• And then there were the responses I think of as specific to the person: “Control” (the psychologist), “No value” (the investment banker), and “black” (the lawyer who, asked to explain, said “legal black hole”).

You probably didn’t need my little exercise to tell you what you already know:  Guantanamo is a symbol of unfairness, of cruelty and it’s badly hurt the United States’ human rights reputation around the world.  But, on the eve of trials starting again, it might be interesting to think (and ask around) this weekend what “Guantanamo” evokes for you and your friends.

Previous Diary Entries

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