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.

Waterboarding: Those Who Cannot Remember The Past

cross posted at docuDharma

Waterboarding (read: torture) is nothing new. It's been around since the 15th century, and has a long, well documented history. That history was briefly summed up by Ted Kennedy for Democracy Now:

It’s an ancient technique of tyrants. In the fifteenth and sixteenth century, it was used by interrogators in the Spanish Inquisition. In the nineteenth century, it was used against slaves in this country. In World War II, it was used against us by Japan. In the 1970s, it was used against political opponents by the Khmer Rouge in Cambodia and the military dictatorships of Chile and Argentina. Today, it’s being used against pro-democracy activists by the rulers of Burma. When we fail to reject waterboarding, this is the company that we keep. /snip

Make no mistake about it: waterboarding is already illegal under United States law. It’s illegal under the Geneva Conventions, which prohibit outrages upon personal dignity, including cruel, humiliating and degrading treatment. It’s illegal under the Torture Act, which prohibits acts specifically intended to inflict severe physical or mental pain or suffering. It’s illegal under the Detainee Treatment Act, which prohibits cruel, inhuman or degrading treatment. And it violates the Constitution. The nation’s top military lawyers and legal experts across the political spectrum have condemned waterboarding as torture. And after World War II, the United States prosecuted— prosecuted— Japanese officers for engaging in waterboarding. What more does this nominee need to enforce existing laws?

This essay isn't about rehashing the many legal arguments about how waterboarding is torture and in violation of US and international law. Instead, this essay recalls two recent, prominent instances in which the US itself prosecuted the use of waterboarding as a crime, as torture. It raises this simple question: how can anyone who acknowledges this relatively recent history argue that waterboarding isn't a crime and isn't torture. And how is it that our learned congresspersons haven't forcefully confronted Bushco's minions with this history?

World War II
NPR reports:

In the war crimes tribunals that followed Japan's defeat in World War II, the issue of waterboarding was sometimes raised. In 1947, the U.S. charged a Japanese officer, Yukio Asano, with war crimes for waterboarding a U.S. civilian. Asano was sentenced to 15 years of hard labor.

According to this Wiki:

The United States has a historical record of regarding waterboarding as a crime, and has prosecuted individuals for the use of the practice in the past. In 1947, the United States prosecuted a Japanese military officer, Yukio Asano, for carrying out a form of waterboarding on a U.S. civilian during World War II. Yukio Asano received a sentence of 15 years of hard labor. The charges of Violation of the Laws and Customs of War against Asano also included "beating using hands, fists, club; kicking; burning using cigarettes; strapping on a stretcher head downward."

The WaPo described what Asano did:

The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

And then there's the record of the conviction. And this article that provides the specifications (starting on page 18) on which Asano and others were tried. These included "water torture", which the charges described:

Specification 1: That in or about July or August, 1943, the accused Yukio Asano, did willfully and unlawfully, brutally mistreat and torture Morris O. Killough, an American Prisoner of War, by beating and kicking him; by fastening him on a stretcher and pouring water up his nostrils.

Specification 2: That on or about 15 May, 1944, at Fukoka Prisoner of War Branch Camp Number 3, Kyushu, Japan, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture Thomas B. Armitage, William O Cash and Munroe Dave Woodall, American Prisoners of War by beating and kicking them, by forcing water into their mouths and noses; and by pressing lighted cigarettes against their bodies.

Specification 5. That between 1 April, 1943 and 31 December, 1943, the accused Yukio Asano, did, willfully and unlawfully, brutally mistreat and torture John Henry Burton, an American Prisoner of War, by beating him; and by fastening him head downward on a stretcher and forcing water into his nose.

And, of course, there's the testimony of victims of these crimes.

It seems clear enough that if what Asano (and others) did was not torture, Bush and Mukasey need to issue him a pardon. But, alas, Asano isn't alone. The issue arose again in Vietnam two decades later. And with the same results: waterboarding was criminal and it was torture.

Vietnam
NPR reports:

On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier.

The photo:


According to this Wiki:

Waterboarding was designated as illegal by U.S. generals in the Vietnam War. On January 21, 1968, The Washington Post published a controversial photograph of an American soldier supervising the waterboarding of a North Vietnamese POW near Da Nang. The article described the practice as "fairly common." The photograph led to the soldier being court-martialled by a U.S. military court within one month of its publication, and he was thrown out of the army. Another waterboarding photograph of the same scene is also exhibited in the War Remnants Museum at Ho Chi Minh City.

Cited source

The original WaPo article is here (pdf format, redacted).

These two cases do not involve statutory construction, a close reading of the texts of treaties, arcane principles of international law. They don't require extensive analysis. The facts are incontrovertible: in World War II and in Vietnam the US prosecuted "waterboarding" as a crime and as torture. And now, Mukasey, like Abu AG before him, and like other Bushco officials criminals have the gall to argue that "waterboarding" somehow isn't a crime. That proposition is laughable. They deserve not only our contempt. They deserve to be impeached and prosecuted.