US detainee tribunals notch wins, raise concerns
Successes include David Hicks's guilty plea this week. But experts say the process is riddled with problems.
WASHINGTON — After years of dispute, legal wrangling, and false starts, the makeshift military justice system set up at the Guantánamo Bay, Cuba, naval base is rolling into action.
Military officials have achieved a string of recent successes with the guilty plea earlier this week of Australian David Hicks and public admissions two weeks earlier from alleged 9/11 mastermind Khalid Sheikh Mohammed and two other Al Qaeda suspects.
But behind these developments lurks a fundamental question. Can America's terror detention camp with its controversial reputation for harsh treatment remake itself into a bastion of fairness and justice?
Defense Department officials are hailing the Hicks guilty plea as an important milestone, marking the first conviction of a defendant facing a military commission trial. But human rights advocates and many legal analysts say Mr. Hicks appears to have pleaded guilty to avoid a trial he knew would never be fair.
"I think it is easy to read his guilty plea as simply a surrender to a system that had been detaining him without a possibility of any kind of resolution for a very long time," says Diane Amann, a war crimes and international law expert at the University of California at Davis School of Law. "I don't think we can say [the plea] proves the commissions are legitimate and that they are going to operate fairly."
On Monday, Hicks pleaded guilty to a charge that he provided material support to Al Qaeda by attending a string of terror training camps in Afghanistan and taking up positions armed with an AK-47 assault rifle to help repel an expected American offensive after the 9/11 terror attacks.
Earlier this month in a closed hearing at the naval base, the alleged mastermind of the 9/11 attacks, Mr. Mohammed, admitted responsibility "from A to Z" for the World Trade Center and Pentagon plots, and confessed to involvement in a long list of other terror operations. Two days later, on March 12, Walid bin Attash told a panel of military officers in a closed hearing that he was a key organizer of the 2000 attack in Yemen on the USS Cole.
And Ahmed Khalfan Ghailani admitted in a closed hearing on March 17 that he purchased and delivered the explosives used to bomb the US Embassy in Tanzania in 1998. He told the panel he did not know that the TNT would be used for a terror attack, but he went on to detail his later work providing false travel documents to Al Qaeda operatives in Pakistan and Afghanistan.
Some analysts say this recent flurry of public disclosures from Guantánamo is no coincidence. "This is an attempt by the government to legitimize everything that has happened up to this point," says J. Wells Dixon, a lawyer with the Center for Constitutional Rights, which represents several detainees at Guantánamo. "They are trying to show the world that these detainees have some measure of fair process." He adds, "That is just not the case."
Legal analysts say the detainee procedures at Guantánamo are riddled with problems that will taint and undermine the legitimacy of the process from beginning to end.
For example, Mohammed's rambling March 10 confession was presented to the military panel assembled to determine whether he is an enemy combatant eligible to be held indefinitely in a cell at Guantánamo. But it could also be used as evidence against him in a subsequent military commission trial. Although Mohammed said he was mistreated and tortured during his interrogation by US officials, the panel – and any future military commission – is empowered to accept coerced information as valid evidence.
Mohammed's admissions, if proven at trial, would make him eligible for a death sentence. But there is no suggestion that Mohammed was granted access to legal counsel prior to making his incriminating public admissions.
Legal analysts say the most revealing assessment of the legitimacy of the Guantánamo procedures will come when a terror suspect and his lawyers test the fairness of the system in the crucible of a full war-crimes trial.
Then it will be largely up to a military judge presiding over the military commission to determine to what extent trial protections taken for granted in American courts may apply to terror suspects on trial at Guantánamo.
Such criticism underscores the substantial hurdles faced by the Bush administration in seeking to build national and international credibility for its commission process. Guantánamo has become for many an international symbol of oppression and injustice.
Even Defense Secretary Robert Gates suggested Thursday that Congress consider moves that would close the detention camp but allow the US to hold some terror suspects for life.
Justice Department officials oppose such a move in part because it would undermine the government's long-held strategy of sharply limiting the legal rights and legal recourse of terror suspects by continuing to hold them outside sovereign US territory.
"Guantánamo remains the most secure and efficient environment to process and detain these enemy combatants," says Defense Department spokesman Lt. Commander Chito Peppler. "While some have called for the closure of Guantánamo, none have put forth a viable option to handle these dangerous men and prevent their return to terrorism."
The US Supreme Court has rejected the view that Guantánamo is a legal black hole. But it remains unclear which rights, if any, protect terror suspects from unfair or cruel treatment by the government.
In a private conference on Friday, the Supreme Court is set to consider whether to take up a case examining whether the Guantánamo procedures authorized in a new law, the Military Commissions Act, are legal and constitutional.
In the meantime, officials at Guantánamo are pressing forward with detention hearings and war-crimes tribunals.
In addition to Hicks, two other long-time detainees have been designated for war-crimes trials at Guantánamo. Former Osama bin Laden driver Salim Ahmed Hamdan is facing charges that he engaged in a terror conspiracy and provided material support to Al Qaeda. Omar Ahmed Khadr, the son of a senior Al Qaeda member, is accused of murdering a US Army sergeant by throwing a hand grenade at American soldiers following a firefight in an Afghan village in July 2002. Mr. Khadr was 15 years old at the time.
Legal records show Hicks was never a major player in Al Qaeda. The former kangaroo skinner and world traveler turned would-be Muslim fighter, appears to have played a role similar to that of American Taliban John Walker Lindh.
Both carried rifles and associated with forces battling US troops and US allies following 9/11. In addition, according to government documents, Hicks attended five terror-training courses teaching expertise in kidnapping, assassination, and surveillance, among other skills.
Mr. Lindh is serving a 20-year prison sentence without the possibility of parole after entering a guilty plea in 2002.