To Avoid Judicial Review, Executions At Guantanamo

Guantanamo Detainee

Yesterday the US announced that 6 Gitmo detainees would face the death penalty after bogus "trials" with unfair and untested procedures. I wrote an essay explaining why this was an outrage and a disgrace. Today, to my shock and surprise, I discovered an even greater outrage: that the US plans to conduct executions of these detainees at Gitmo so that the detainees will be denied any judicial review in the US Courts. If yesterday's news was dreadful, today's is even more cynical and and even greater disgrace.

AP reports:

If six suspected terrorists are sentenced to death at Guantanamo Bay for the Sept. 11 attacks, U.S. Army regulations that were quietly amended two years ago open the possibility of execution by lethal injection at the military base in Cuba, experts said Tuesday.

Any executions would probably add to international outrage over Guantanamo, since capital punishment is banned in 130 countries, including the 27-nation European Union.

Conducting the executions on U.S. soil could open the way for the detainees' lawyers to go to U.S. courts to fight the death sentences. But the updated regulations make it possible for the executions to be carried out at Guantanamo.

And so the US intends to kill detainees after a "trial" before a Military Commission and not a court without permitting the possibility of review by US civilian courts. The US fears that bringing prisoners to the US might make habeas corpus available to them. How does Bushco solve this troubling problem of detainees seeking habeas corpus relief? By thumbing its nose at civilian courts, by building an execution chamber in Guantanamo, and by continuing to argue that Guantanamo is not subject to the habeas corpus jurisdiction of the US Courts.

How was the groundwork for this so stealthily accomplished?

Up until recently, experts on military law said, it was understood that military regulations required executions to be carried out by lethal injection at Fort Leavenworth in Kansas.

But in January 2006, the Army changed its procedures for military executions, allowing "other locations" to be used. The new regulations say that only the president can approve an execution and that the secretary of the Army will authorize the location.

"Military executions will be by lethal injection," the regulations say.

The US plan is quite simple. And it's this: do not allow the civilian United States Courts to inquire into the legality of the detainees' detention, or whether their guilt has been proved, or whether the "lethal injection" protocol is valid, or whether they are "enemy combatants," or whether they have been proved guilty, or anything else. Avoid all that potentially embarrassing judicial review. Just don't let detainees get to the US no matter what. Make sure they are killed in Guantanamo, that they never leave Guantanamo alive.

No death chamber is known to exist at Guantanamo, but Scott Silliman, a former Air Force lawyer and who is now a Duke University professor, said the military may decide to build one there. The 2006 Army regulations also call for a viewing room to the death chamber, where at least two news media representatives would be witnesses.

And so, even though the US just spent $12,000,000 on a courtroom in Guantanamo for "war crimes trials", and a death chamber has still not been built, the plan is in place to insulate the exterminations of detainees from meaningful, civilian court review.

In an irony, Bushco is trying today to quell arguments about killing the detainees:

The Bush administration has instructed U.S. diplomats abroad to defend its decision to seek the death penalty for the six men by recalling the executions of Nazi war criminals after World War II.

A four-page cable sent to U.S. embassies and obtained Tuesday by The Associated Press says that execution as punishment for extreme violations of the laws of war is internationally accepted.

The cable points to the 1945-46 Nuremberg war crimes trials in Germany. Twelve of Adolf Hitler's senior aides were sentenced to death at the trials, though not all were executed in the end.

The irony? The Nuremberg trials were entirely public. The Military Commissions remain hidden behind the wire at Guantanamo and their goal is to prevent public review of their conclusions.

What a disgrace.

Show Trials: 6 Gitmo Detainees Face Death

A Gitmo Detainee

Let the Gitmo show "trials" begin. Let the Bushites promote fear of "terrorism" in behalf of McCain. Let those who have been waterboarded be convicted on statements they made under torture. Let the US show the entire world that it's mired in its barbarianism and that it will kill to advance a partisan political agenda. Let yet another national disgrace unfold.

Killing to advance a partisan political agenda isn't exactly new. Two of the most glaring examples: Ricky Ray Rector and Karla Faye Tucker. And now the eventual killing of 6 Gitmo detainees-- even if they are convicted executions will not be possible for years-- is planned. Notice when this announcement was made. It's been 6+ years since the incident, and the detainees have been in custody for more than 5 years. But the election season is upon us, and the Republican front runner believes that terrorism is his most powerful issue. Is this the earliest moment when the announcement could have been made that the death penalty would be sought? Of course not. But what better political time to announce this.

Today's New York Times tells part of the story:

Six Guantánamo detainees who are accused of central roles in the terror attacks of Sept. 11, 2001, will be shown all the evidence against them and will be afforded the same rights as American soldiers accused of crimes, the Pentagon said Monday as it announced the charges against them.

Military prosecutors will seek the death penalty for the six Guantánamo detainees on charges including conspiracy and murder “in violation of the law of war,” attacking civilians and civilian targets, terrorism and support of terrorism, Brig. Gen. Thomas Hartmann of the Air Force, legal adviser to the Defense Department’s Office of Military Commissions, said at a Pentagon news briefing.

General Hartmann said it would be up to the trial judge how to handle evidence obtained through controversial interrogation techniques like “waterboarding,” or simulated drowning. Critics have said the harsh techniques, which are believed to have been used on several of the defendants, amount to torture.

As expected, the six include Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the Sept. 11 attacks, which killed nearly 3,000 people.

The Military Commission system has not yet had a single "trial." The one case in which there was a disposition, David Hicks, involved a guilty plea. So nobody knows whether the commission system works or how it works in practice and none of the procedures has been tested in an actual "trial." And, of course, the decision to seek the death penalty was announced before any of the charges were translated and served on the accused. So the additional complications of having a death penalty trial, let alone the 6 announced at this moment, haven't been worked out. Today's dramatic announcement means that a previously untested, unused procedure will now be invoked for the first time to decide if the six live or die.

This should spark a worldwide firestorm of criticism:

The decision to seek the death penalty will no doubt increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial. The death penalty is an issue that has caused friction for decades between the United States and many of its allies who consider capital punishment barbaric.

“The system hasn’t been able to handle the less-complicated cases it has been presented with to date,” said David Glazier, a former Navy officer who is a professor at Loyola Law School in Los Angeles.

Forget that the commission hasn't been used yet. Not once. In today's announcement, to no one's surprise, General Hartmann emphasized the procedural safeguards the accused would supposedly have:

General Hartmann said he could not predict when actual trials would begin, but that pretrial procedures would take several months at least. He said the accused will enjoy the same rights that members of the American military enjoy, and that the proceedings will be “as completely open as possible,” notwithstanding the occasional need to protect classified information.

In no sense will the proceedings be secret, the general said. “Every piece of evidence, every stitch of evidence, every whiff of evidence” will be available to the defendants, General Hartmann said.

Some officials briefed on the case have said the prosecutors view their task in seeking convictions for the Sept. 11 attacks as a historic challenge. A special group of military and Justice Department lawyers has been working on the case for several years.

Evidently a speedy trial isn't one of the rights the detainees have. Nor is the freedom from torture. Nor is the suppression of statements extracted under torture or evidence derived from the fruits of torture. And it remains to be seen exactly what kind of cross examination and confrontation rights the detainees have. And what kind of rights the detainees have to call witnesses in their own behalf. And what kind of non-secret, public "trial" they will receive behind the wire in Guantanamo. General Hartmann's statements aside, there's more to due process than receiving the evidence against the accused. A whole lot more.

Put simply, today's announcement should be widely condemned for its barbarity. And for its obvious political motivations. This a complete disgrace.