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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)
Jul 9, 2003

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