What I know of military law is contained in that cliche, one I remember from my Criminal Law professor decades ago. So when the Center for American Progress says the detainees in Gitmo should be tried in Kansas under the Uniform Code of Military Justice, I am less than sanguine about the prospect. I agree with Colin Powell: let these "terrorists" be tried in a civilian court, with the full protection of the criminal law, because the circumstances of their capture and detention is dubious enough. Mike Huckabee, (yes, that Mike Huckabee) on the other hand, is just plain crazy:
BLITZER: But the argument isn’t so much the physical condition as to the legal system that they face. These suspected terrorists, these detainees are being held, by and large, without charges, without any evidence. They’re just being kept there indefinitely. And that’s causing a smear on the U.S. reputation.Funny we don't apply that standard to everyone we have in jail now for serious crimes, isn't it? Maybe because we can't build enough prisons. Maybe because that concept undermines any notion of "justice," or even a "system." We declare you guilty, we lock you up, problem solved! We don' need no steenken' badges!
HUCKABEE: I understand that. But I’ll tell you, if we let somebody out and it turns out that they come and fly an airliner into one of our skyscrapers, we’re going to be asking, how come we didn’t stop them? We had them detained.
There’s not a perfect solution. The perfect solution is to get people to quit being terrorists. And that’s not something we can easily control. If we’re going to make a mistake right now, let’s make it on the side of protecting the American people. That’s the number one role and responsibility that an American president has right now.
Does protecting the American people really mean destroying the system we cherish in order to save it? Because these are the conditions he is talking about:
JONATHAN HARETZ: Well, um, initially, he was subjected to…well, uh, held incommunicado as I mentioned, without any access to anyone in the outside world. He was held in a tiny cell with no one to talk to. Um, there was no, it was all metallic services, he developed severe pain, he was denied things like a blanket, denied the Koran, subjected to religious abuse, not permitted to practice Islam, um, denied any kind of stimulation, of any - what I mean by - any books, any knowledge of what was going on. Just basically locked in a cell 24 hours a day, seven days a week. Not permitted to see sunlight. There were threats were made against him, against his family, that they would – his family would be sent to Egypt, that his wife would be raped. Uh, just actually horrible, horrible things. This has improved somewhat, in part with response to the lawsuit we filed, and part, response to actually the men and women at the military brig, who are not setting the policy, and are, are um, you know, realize they have a human being there, and are acting accordingly. But uh, you know, at the highest levels of government, there was a decision made to detain him as “enemy combatant”, to subject him to this kind of torture and abuse that you can’t get away with in the civilian justice system, because its just flatly illegal and unconstitutional.Note, first, that simple humanity is trying to triumph over abstractions such as "enemy combatant," a determination made by people who wouldn't know Mr. al-Mari if he shook their hand. Note, too, that Ali al-Marri was arrested in the US, and is being held in a military prison. Jonathan Hafetz, his lawyer, speaks continually of the military in his interview. Since when did we pass a law that the US military was judge, jury, and executioner of sentence on anyone the President labelled "enemy combatant"? And I don't consider the ex-post facto authorization of the "Military Commissions Act of 2006" to be a valid authorization of that authority, especially in the case of Mr. al-Marri. Why is this man in a military prison, and being subjected (apparently) the military law?
And, as I was saying, maybe we were the good guys in WWII only because we weren't the bad guys:
The U.S. war crimes tribunals at Guantanamo have betrayed the principles of fairness that made the Nazi war crimes trials at Nuremberg a judicial landmark, one of the U.S. Nuremberg prosecutors said on Monday.And this was for the Nazis, the people we still uphold as the standard of human evil. What of the people in Gitmo?
"I think Robert Jackson, who's the architect of Nuremberg, would turn over in his grave if he knew what was going on at Guantanamo," Nuremberg prosecutor Henry King Jr. told Reuters in a telephone interview.
"It violates the Nuremberg principles, what they're doing, as well as the spirit of the Geneva Conventions of 1949."
King, 88, served under Jackson, the U.S. Supreme Court justice who was the chief prosecutor at the trials created by the Allied powers to try Nazi military and political leaders after World War Two in Nuremberg, Germany.
"The concept of a fair trial is part of our tradition, our heritage," King said from Ohio, where he lives. "That's what made Nuremberg so immortal -- fairness, a presumption of innocence, adequate defense counsel, opportunities to see the documents that they're being tried with."
King, who teaches law at Case Western Reserve University in Ohio, also questioned whether former Guantanamo prisoner David Hicks deserved to be tried as a war criminal. After being held at Guantanamo for more than five years, the Australian pleaded guilty in March to a charge of providing material support for terrorism and was sent home to serve the rest of his nine-month sentence.And the world knows this, if our politicians do not:
"He's not an arch-criminal type, just a guy who was disaffected from the system," King said.
Hicks, who admitted training with al Qaeda and briefly fighting on its side in Afghanistan, is the only person convicted in the Guantanamo war crimes tribunals.
What was previously just a set of allegations is now proven: large numbers of people have been abducted from various locations across the world and transferred to countries where they have been persecuted and where it is known that torture is common practice. Others have been held in arbitrary detention, without any precise charges levelled against them and without any judicial oversight – denied the possibility of defending themselves. Still ohers have simply disappeared for indefinite periods and have been held in secret prisons, including in member states of the Council of Europe, the existence and operations of which have been concealed ever since.This perhaps deserves a seperate post; but it is all of a piece. Consider, for example, the remarks of the Secretary General of the Council of Europe:
2. Some individuals were kept in secret detention centres for periods of several years, where they were subjected to degrading treatment and so-called “enhanced interrogation techniques”
(essentially a euphemism for a kind of torture), in the name of gathering information, however unsound, which the United States claims has protected our common security. Elsewhere, others have been transferred thousands of miles into prisons whose locations they may never know, interrogated ceaselessly, physically and psychologically abused, before being released because they were plainly not the people being sought. After the suffering they went through, they were released without a word of apology or any compensation – with one remarkable exception owing to the ethical and responsible approach of the Canadian authorities – and also have to put up with the opprobrium of doubts surrounding their innocence and, right here in Europe, racist harassment fuelled by certain media outlets. These are the terrible consequences of what in some quarters is called the “war on terror.”
3. While the strategy in question was devised and put in place by the current United States administration to deal with the threat of global terrorism, it has only been made possible by the collaboration at various institutional levels of America’s many partner countries.
I have just seen the follow up report investigating allegations of “extraordinary renditions” and secret detentions in Council of Europe member states, which was prepared by Dick Marty and made public today by the Legal Affairs Committee of the Parliamentary Assembly.The language used by the lead investigator is really quite blunt:
It is too early to make any definite judgment on the content, but it is evident that Dick Marty and his team have invested a great deal of effort and that his conclusions are a matter of concern. They should be carefully studied by the governments of all Council of Europe member states.
The report also adds additional weight to the need for Council of Europe governments to take action on the recommendations which I made to them a year ago, and which contain specific proposals on how to prevent such violations of human rights in the future.
Invoking state secrets in such a way that they apply even years after the event is unacceptable in a democratic state based on the rule of law. It is frankly all the more shocking when the very body invoking such secrets attempts to define their concept and scope, as a means of shirking responsibility. The invocation of state secrets should not be permitted when it is used to conceal human rights violations and it should, in any case, be subject to rigorous oversight. Here again, Canada seems to demonstrate the right approach, as will be seen later in this report.I am compelled to point out the Washington Post has reported on this memorandum, but you will look in vain for any mention of its involvement in this story as cited in the memorandum. Even Eugene Robinson is more discreet than that. Always a better narrative when we can make sure "they" are the ones responsible. Robinson, in fact, quotes approvingly what he calls the "conclusion" of this memorandum, which is in paragraphs 14 and 15"
7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, the Washington Post simply referred generically to "eastern European democracies", although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to “kill, capture and detain” terrorist suspects deemed to be of “high value”. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources.
8. The secret detention facilities in Europe were run directly and exclusively by the CIA. To our knowledge, the local staff had no meaningful contact with the prisoners and performed purely logistical duties such as securing the outer perimeter. The local authorities were not supposed to be aware of the exact number or the identities of the prisoners who passed through the facilities – this was information they did not “need to know.” While it is likely that very few people in the countries concerned, including in the governments themselves, knew of the existence of the centres, we have sufficient grounds to declare that the highest state authorities were aware of the CIA’s illegal activities on their territories.
14 We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. However, we believe that the end does not justify the means in this area either. The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. I hold this view not only because methods of this nature conflict with the constitutional order of all civilised countries and are ethically unacceptable, but also because they are not effective from the perspective of a genuine long-term response to terrorism.But the memorandum is much more concrete than that:
15 We have said it before and others have said it much more forcefully, but we must repeat it here: having recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. Moreover, in the process, we give these criminals a degree of legitimacy – that of fighting an unfair system – and also generate sympathy for their cause, which cannot but serve as an encouragement to them and their supporters.
16. The fact is that there is no real international strategy against terrorism, and Europe seems to have been tragically passive in this regard. The refusal to establish and recognise a functioning international judicial and prosecution system is also a major weakness in our efforts to combat international terrorism. We also agree with the view expressed by Amnesty International in its recent annual report: governments are taking advantage of the fear generated by the terrorist threat to impose arbitrary restrictions on fundamental freedoms. At the same time, they are paying no attention to developments in other areas that claim many more lives, or they display a disconcerting degree of passivity. We need only cast our minds to human trafficking or the arms trade: how is it possible, for example, that aeroplanes full of weapons continue to land regularly in Darfur, where a human tragedy with tens of thousands of victims is unfolding?Indeed, the memorandum ends with this observation:
17. In our view, it is also necessary to draw attention to an aspect we believe to be very dangerous: the legitimate fight against terrorism must not serve as a pretext for provoking racist and Islamophobic reactions among the public. The Council of Europe has rightly recognised the fundamental importance of intercultural and interfaith dialogue. The member states and observers really should carry these efforts forward and maintain the utmost of vigilance on the issue. Any excesses in this respect could have disastrous consequences in terms of an expanded future terrorist
18. In the course of our investigations and through various specific circumstances, we have become aware of certain special mechanisms, many of them covert, employed by intelligence services in their counter-terrorist activities. It is not for us to judge these methods, although in this area, too, great liberties appear to be taken with lawfulness. Many of these methods give rise to chain reactions of blackmail and lies between different agencies and institutions in individual states, as well as between states. Therein may lie at least a partial explanation for certain governments’ fierce opposition to revealing the truth. We cannot go into the details of this phenomenon without putting human lives at risk. Let me reiterate that we are fully convinced of the strategic importance of the work of intelligence services in combating terrorism. However, we believe equally strongly that the relevant agencies need to be subject to codes of conduct, accompanied by robust and thorough supervision.
We must condemn the attitude of the many countries that did not deem it necessary to reply to the questionnaire we sent them through their national delegations. Similarly, NATO has never replied to our correspondence.So much for our good intentions. And so much for relying on the Uniform Code of Military Justice, too (there is a serious jurisdictional question there; and to the extent Congress even gave the UCMJ jurisdiction over non-military personnel in these matters, I think it should be withdrawn.). After all that, the Huckabee defense is really all we have left: hey, military prison ain't that bad! You should see how we treat our own citizens in Arkansas!
Wait; that sounded better before I said it....