Golgot
08-29-04, 02:17 PM
Here are some excerpts from an excellent article on some of the needless and unjustifiable failings of the Guantanamo process...
Overdue Process
http://news.ft.com/cms/s/16a4b97e-f88f-11d8-8b09-00000e2511c8.html
(This is the first section of four. Search www.ft.com [the highly trustable Financial Times] for the rest)
Here's the intro...
The preliminary hearings opened earlier this week in the first US military tribunals since the second world war, held in a specially constructed courtroom in Guantanamo Bay, Cuba. More than 700 men have been imprisoned in Guantanamo since the camp opened for business in early 2002.
And here are the problems...
1) THE FALSE-IMPRISONMENT RATE
"The only thing I know for certain is that these are bad people,"
By April this year, 146 detainees had been returned to their native countries... More than 80 per cent of them, once back home, were released without charge. They include an Afghan taxi driver and his passenger, several Afghan truck drivers, two teenaged Afghan boys, civilians of various nationalities who say they were engaged in aid work, and an Afghan shepherd.
Ok, so, personally, i accept that there will be people falsely imprisoned and tortured during this process, and that this can be justified.
So what you've got to do is make sure you make that number as small as possible. This is something the Bush admin has spectacularly failed to do. Here's one of the major reasons...
When the Taliban fled Kabul in November 2001, the US dropped leaflets in Afghanistan offering a bounty for captured Taliban and al-Qaeda fighters. Thousands of men were sold to US forces by Northern Alliance forces, (as were the three British detainees released earlier this year).
Now, the Northern Alliance HATED the Taliban, and that would over-ride most possible sympathies they might have with Al Qaeda. Yet the US obviously thought there was too much of a risk they wouldn't hand over all of their enemies to their vital new ally.
So they felt the need to offer the bounty too.
Any idiot can tell you, that in such an impoverished and degraded set-up, they're going to sell you just about anyone they don't care for. Pretty easy money.
Now, i'm going to assume that the brains behind this policy were smart [God knows there's been evidence to the contrary in the Iraq debacle], and they didn't care that they'd get lots of 'false positives' (i.e. - loads of innocent people).
Here's one possible reason why...
The lawyers believe that a primary purpose of Guantanamo was to act as an intelligence bank and a source of potential double agents.
That might explain why they desperately termed truck drivers 'enemy combatants'. They wanted to keep them as long as possible, even those who played no military role, or any role, and had no intelligence to provide.
This is one of the many situations where the use of the term 'intelligence' has been abused to an unjustifiable extent during the 'war on terror'.
2) INTELLIGENCE ABUSE
In a training exercise on protected information, one officer [a military lawyer] said that he knew of no evidence that implicated his client. He was told that the absence of evidence was itself protected information.
There are plenty more examples wrapped up in the biggest prob of all...the judicial proceedings...
3) THE JUSTICE-DEGRADING NATURE OF GUANTANAMO
Both national and international laws have been thrown out the window (thus degrading the US's position of authority and inspiring further hatred and terror) when they could have been modified through existing infrastructures...
As a military-based proceedure, it's understandable that Guantanamo (et al) would vary from legal norms. But some of the infrastructure-omissions are unjustifiable, as there is no real impediment to their application, and they would ensure a greater reduction in the number of innocents being held.
The conditions that the Department of Defence imposed were regarded as so draconian by the US National Association of Criminal Defence Lawyers that it ruled it would be unethical for a lawyer to agree to defend a prisoner in the Guantanamo tribunals.
Here's a brief summary of how the system falls down when compared to a normal legal proceeding:
-It is not independent or impartial and there is no impartial review.
-The two sides are not equal since prosecution assets outweigh defence assets by three or four to one. "There are 20 prosecutors and only five defenders," [Swift - one of the 5 military Defence Lawyers appointed after original objections] said. "They can put any number of people on to my case."
-The "appointing authority", he complained, functions as both the judge and the prosecutor and "decides who is going to be charged, what the charges are, who is on the jury, what resources and discovery the defence gets, and then he rules on the legality of his own decisions".
-Besides, according to Swift, the government may exclude a detainee from the hearings, which makes it impossible for him to challenge the evidence.
There is no reason why most of these standard safeguards can't be introduced to ensure the highest level of factual information and just sentencing.
The Supreme Court seems to agree, considering its condemnations of June 28.
Not that it had much effect...
On July 30, the Justice Department argued that the prisoners had no constitutional rights and there was no obligation to allow them access to their lawyers. The defence lawyers now fear that the administration will try to use the decisions of the combatant status review tribunals to resist the habeas corpus petitions in the federal court. "It's as though the Supreme Court decision never happened," says Wilner....
The government agreed to allow access to other [lawyers], provided that they were US citizens and had been given security clearance, a process that the Department of Defence promised would take only two weeks. For some of the lawyers, it has already lasted 10 months. The authorities continue to insist that legal conversations with the client must be monitored. The prisoners, they say, might be in possession of US "top secret" information that the lawyers have not been cleared to hear. "Leaving aside the mystery of how foreign nationals who had been in US custody for two years might have acquired top secret US information," said Wilner [a lawyer for Shearman & Sterling], "why don't they just clear us for top secret information?"
This is the only real objection to instigating a decent legal framework: The number of people who'd have to get clearance to hear the 'top secret' information.
In the cases of 'combatants' that have been 'sold' to the US by the Northern Alliance, and for whom there is no evidence of wrong-doing, there are no intelligence sources to protect. We can only hope that all such people have now been weeded out.
For all the others, there's a fairly simple solution:
Just appoint more than 5 military defence lawyers and give them clearance! :rolleyes:
Ideally you'd want some security-cleared legal body overseeing things - but that'd be start at least :rolleyes:
Then you wouldn't have such a high risk of untenable numbers of innocent people having to live with indefinite imprisonment and...
4) TORTURE
One frequently used punishment was a visit from the "Extreme Reaction Force" (ERF) - a practice that became known among the lawyers as "Erfing". Released detainees have described the Extreme Reaction Force as a seven-man squad, one of whom carries a plexiglass shield, who are called in when a prisoner refuses to obey an order. This happens, according to Department of Defence officials, on an average of three times a week.
Evidence of the brutality of "Erfing" came from Sean Baker, a member of a military police unit who was assigned to duty in Guantanamo. In January 2003, he volunteered to play the part of an unco-operative prisoner for an ERF training exercise. He wore an orange jumpsuit and the squad was unaware that he was not a detainee. The beating only stopped, he says, when his jumpsuit was torn open and his military uniform beneath revealed, by which time he had suffered brain damage and is now subject to seizures. Baker has sought legal advice.
And that's just one of many techniques. Not sure the taxi drivers and others with no evidence against them really deserved that. :(
---
Those that think this current approach is the only approach can forget the influence these failings have had on other jails, like those in Iraq, if they like. They can forget the way this approach supports some of the arguments (and thus swells the ranks) of those we're trying to fight.
But what they should remember is that lots of wrongs don't make a right ;) :(
Overdue Process
http://news.ft.com/cms/s/16a4b97e-f88f-11d8-8b09-00000e2511c8.html
(This is the first section of four. Search www.ft.com [the highly trustable Financial Times] for the rest)
Here's the intro...
The preliminary hearings opened earlier this week in the first US military tribunals since the second world war, held in a specially constructed courtroom in Guantanamo Bay, Cuba. More than 700 men have been imprisoned in Guantanamo since the camp opened for business in early 2002.
And here are the problems...
1) THE FALSE-IMPRISONMENT RATE
"The only thing I know for certain is that these are bad people,"
By April this year, 146 detainees had been returned to their native countries... More than 80 per cent of them, once back home, were released without charge. They include an Afghan taxi driver and his passenger, several Afghan truck drivers, two teenaged Afghan boys, civilians of various nationalities who say they were engaged in aid work, and an Afghan shepherd.
Ok, so, personally, i accept that there will be people falsely imprisoned and tortured during this process, and that this can be justified.
So what you've got to do is make sure you make that number as small as possible. This is something the Bush admin has spectacularly failed to do. Here's one of the major reasons...
When the Taliban fled Kabul in November 2001, the US dropped leaflets in Afghanistan offering a bounty for captured Taliban and al-Qaeda fighters. Thousands of men were sold to US forces by Northern Alliance forces, (as were the three British detainees released earlier this year).
Now, the Northern Alliance HATED the Taliban, and that would over-ride most possible sympathies they might have with Al Qaeda. Yet the US obviously thought there was too much of a risk they wouldn't hand over all of their enemies to their vital new ally.
So they felt the need to offer the bounty too.
Any idiot can tell you, that in such an impoverished and degraded set-up, they're going to sell you just about anyone they don't care for. Pretty easy money.
Now, i'm going to assume that the brains behind this policy were smart [God knows there's been evidence to the contrary in the Iraq debacle], and they didn't care that they'd get lots of 'false positives' (i.e. - loads of innocent people).
Here's one possible reason why...
The lawyers believe that a primary purpose of Guantanamo was to act as an intelligence bank and a source of potential double agents.
That might explain why they desperately termed truck drivers 'enemy combatants'. They wanted to keep them as long as possible, even those who played no military role, or any role, and had no intelligence to provide.
This is one of the many situations where the use of the term 'intelligence' has been abused to an unjustifiable extent during the 'war on terror'.
2) INTELLIGENCE ABUSE
In a training exercise on protected information, one officer [a military lawyer] said that he knew of no evidence that implicated his client. He was told that the absence of evidence was itself protected information.
There are plenty more examples wrapped up in the biggest prob of all...the judicial proceedings...
3) THE JUSTICE-DEGRADING NATURE OF GUANTANAMO
Both national and international laws have been thrown out the window (thus degrading the US's position of authority and inspiring further hatred and terror) when they could have been modified through existing infrastructures...
As a military-based proceedure, it's understandable that Guantanamo (et al) would vary from legal norms. But some of the infrastructure-omissions are unjustifiable, as there is no real impediment to their application, and they would ensure a greater reduction in the number of innocents being held.
The conditions that the Department of Defence imposed were regarded as so draconian by the US National Association of Criminal Defence Lawyers that it ruled it would be unethical for a lawyer to agree to defend a prisoner in the Guantanamo tribunals.
Here's a brief summary of how the system falls down when compared to a normal legal proceeding:
-It is not independent or impartial and there is no impartial review.
-The two sides are not equal since prosecution assets outweigh defence assets by three or four to one. "There are 20 prosecutors and only five defenders," [Swift - one of the 5 military Defence Lawyers appointed after original objections] said. "They can put any number of people on to my case."
-The "appointing authority", he complained, functions as both the judge and the prosecutor and "decides who is going to be charged, what the charges are, who is on the jury, what resources and discovery the defence gets, and then he rules on the legality of his own decisions".
-Besides, according to Swift, the government may exclude a detainee from the hearings, which makes it impossible for him to challenge the evidence.
There is no reason why most of these standard safeguards can't be introduced to ensure the highest level of factual information and just sentencing.
The Supreme Court seems to agree, considering its condemnations of June 28.
Not that it had much effect...
On July 30, the Justice Department argued that the prisoners had no constitutional rights and there was no obligation to allow them access to their lawyers. The defence lawyers now fear that the administration will try to use the decisions of the combatant status review tribunals to resist the habeas corpus petitions in the federal court. "It's as though the Supreme Court decision never happened," says Wilner....
The government agreed to allow access to other [lawyers], provided that they were US citizens and had been given security clearance, a process that the Department of Defence promised would take only two weeks. For some of the lawyers, it has already lasted 10 months. The authorities continue to insist that legal conversations with the client must be monitored. The prisoners, they say, might be in possession of US "top secret" information that the lawyers have not been cleared to hear. "Leaving aside the mystery of how foreign nationals who had been in US custody for two years might have acquired top secret US information," said Wilner [a lawyer for Shearman & Sterling], "why don't they just clear us for top secret information?"
This is the only real objection to instigating a decent legal framework: The number of people who'd have to get clearance to hear the 'top secret' information.
In the cases of 'combatants' that have been 'sold' to the US by the Northern Alliance, and for whom there is no evidence of wrong-doing, there are no intelligence sources to protect. We can only hope that all such people have now been weeded out.
For all the others, there's a fairly simple solution:
Just appoint more than 5 military defence lawyers and give them clearance! :rolleyes:
Ideally you'd want some security-cleared legal body overseeing things - but that'd be start at least :rolleyes:
Then you wouldn't have such a high risk of untenable numbers of innocent people having to live with indefinite imprisonment and...
4) TORTURE
One frequently used punishment was a visit from the "Extreme Reaction Force" (ERF) - a practice that became known among the lawyers as "Erfing". Released detainees have described the Extreme Reaction Force as a seven-man squad, one of whom carries a plexiglass shield, who are called in when a prisoner refuses to obey an order. This happens, according to Department of Defence officials, on an average of three times a week.
Evidence of the brutality of "Erfing" came from Sean Baker, a member of a military police unit who was assigned to duty in Guantanamo. In January 2003, he volunteered to play the part of an unco-operative prisoner for an ERF training exercise. He wore an orange jumpsuit and the squad was unaware that he was not a detainee. The beating only stopped, he says, when his jumpsuit was torn open and his military uniform beneath revealed, by which time he had suffered brain damage and is now subject to seizures. Baker has sought legal advice.
And that's just one of many techniques. Not sure the taxi drivers and others with no evidence against them really deserved that. :(
---
Those that think this current approach is the only approach can forget the influence these failings have had on other jails, like those in Iraq, if they like. They can forget the way this approach supports some of the arguments (and thus swells the ranks) of those we're trying to fight.
But what they should remember is that lots of wrongs don't make a right ;) :(