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Guantanamo move puts US on
trial
By Jim Lobe
WASHINGTON - The
United States' announcement on Friday that six of its
foreign captives in its "war on terrorism" are eligible
to be tried before military tribunals - where they could
potentially be given the death penalty - appears likely
to annoy some of its strongest allies, especially the
United Kingdom.
The announcement came just as
the administration of President George W Bush has begun
mending fences damaged by the US war in Iraq in hopes
that other countries will contribute peacekeepers to
Washington's troubled occupation.
Reports that
two of the six to be tried are British citizens captured
in Afghanistan prompted expressions of concern over the
weekend from London, where Prime Minister Tony Blair has
been battered by weeks of controversy over whether he
misled the British public about the imminence of any
threat posed by Iraqi president Saddam Hussein.
The London Observer reported on Sunday that
Britain's foreign secretary, Jack Straw, will ask his US
counterpart, Secretary of State Colin Powell, to
repatriate the two men, rather than to permit them to be
tried by a US military court whose procedures, according
to US and international human-rights groups, do not meet
minimum due-process standards and which is empowered to
impose the death penalty.
The newspaper also
reported that the two Britons, Moazzam Begg and Ferz
Abassi, will be given a choice to plead guilty and
accept a 20-year prison sentence or to undergo trial on
charges that will, if sustained by the court, result in
a death sentence. It said the acting British ambassador
in Washington, Tony Brenton, will raise London's
"official concern" about the cases directly with the
White House this week.
A third defendant, David
Hicks from Australia, has also been identified as one of
the six, according to reports from Australia. The
identity and nationalities of the other three have not
been disclosed, although presumably their home
governments have been informed.
The three known
defendants are being held with as many as 680 other
foreign captives at Camp X-Ray at Washington's
Guantanamo Bay naval base in Cuba where, according to a
series of court decisions, none of them enjoys the basic
due-process rights required by the US constitution.
Most of the captives there were seized in
Afghanistan during and after the US-led military
campaign that ousted the Taliban government in late
2001. Some, however, were seized as part of the US "war
on terrorism" well after the anti-Taliban campaign and
in countries other than Afghanistan.
Of the
hundreds who have been held at Guantanamo, only about 40
have been released and repatriated. Camp officials admit
that many of those who continue in captivity held
low-ranking positions in the Taliban and whose
intelligence value, if any, ran out long ago. In April,
the administration acknowledged that three of the
prisoners were between the ages of 13 and 15.
Human-rights and civil-liberties groups, such as
Amnesty International, Human Rights Watch (HRW), and the
International Committee of the Red Cross (ICRC), have
strongly protested against the conditions under which
the detainees are being held, and particularly the
failure to accord any of the prisoners a hearing to
determine whether they qualify as prisoners of war under
the Geneva Conventions. Washington has instead insisted
that all of the detainees are "illegal combatants" and
thus not entitled to all the protections accorded to
POWs.
They also have objected to the military
commissions that are supposed to try at least some of
the detainees, insisting that they fall far short of
minimum due-process standards. "Any trial before these
military commissions would be a travesty of justice,"
Amnesty International said on Friday after the
announcement regarding the six who may now be tried. "We
urge the US administration to rethink its strategy
before it causes any further affront to international
fair-trial norms and any more damage to its own
reputation."
While the rules for the commissions
incorporate some due-process safeguards, such as public
trials, requiring proof beyond a reasonable doubt for
conviction, and the cross-examination of witnesses,
these provisions are not nearly enough to overcome other
serious flaws in the rules, the most important of which,
perhaps, is the denial of a right to appeal to an
independent and impartial court that is not part of the
executive branch of the US government.
In
addition, the right to counsel is far too limited under
the rules, according to rights advocates and
military-justice lawyers in the United States. Under the
rules, all defendants will be represented by military
defense counsel, even if they or their families prefer
to hire a civilian lawyer to defend them. That provision
violates the International Covenant on Civil and
Political Rights, to which the US is a party, and which
guarantees the right of criminal defendants to be
represented by a lawyer "of their choosing".
In
addition, limitations on defense counsel's ability to
represent clients are particularly severe, according to
HRW and the Lawyers' Committee for Human Rights. They
permit the government, for example, to monitor
attorney-client communications, deny access to certain
documents, and require counsel to do all their research
related to the defense at the site of the commissions,
presumably at Guantanamo. That means that, even if
evidence or testimony were available in Afghanistan,
defense lawyers would be barred from using it in the
commission proceedings.
"These are fundamentally
contrary to the American tradition of a fair trial,"
said Michael Noone, a retired US Air Force colonel who
teaches military law at Catholic University of America
here.
The British government clearly shares the
views of the critics regarding the commissions. "It
isn't something that we would be able to do in this
country," said Baroness Symons, a senior Foreign Office
official, in an interview last weekend with the British
Broadcasting Corp, "because, of course, we would want to
ensure that there is a separation between government on
one hand and the judiciary on the other".
That
sentiment was echoed by the Begg's father, Azmat Begg,
who lives in Birmingham, England. On being told by the
British government that his son had been designated for
possible trial, he told the BBC, "I was very depressed,
very unhappy, and very much worried because the judge is
from the military, the prosecution is from the military,
the jury is from the military and even his solicitor is
from the military. Everything is being done by the
military, so it is not going to be a fair trial."
The European Commission (EC) in Brussels also
publicly urged the United States on Friday to forgo any
application of the death penalty in these cases. "The
death sentence cannot be applied by military courts,"
said EC spokesman Diego de Ojeda, "as this would make
the international coalition lose the integrity and
credibility it has so far enjoyed.
"Our position
clearly remains that the fight against terrorism should
not give rise to a violation of human rights," he added.
Pentagon officials have indicated that they plan
to prosecute only a few dozen of their captives,
although they have remained mum about what they intend
to do with the rest of the prisoners.
(Inter
Press Service)
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