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Tortured logic on Gitmo Military Tribunals
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So why “fix” them?
Last August, Osama bin Laden’s former driver was sentenced to just five and a half years in prison for providing material support for Al Qaeda in the first trial of a terror suspect by a Special Military Commission (SMC) at Guantanamo Bay, Cuba.
Salim Hamdan, who could have received 30 years to life, appeared healthy in his open trial (see artist's depiction). Instead, he was acquitted of conspiracy by the six military officers that served as the jury, even though he chauffeured OBL after learning AQ was involved in terrorism.
Given the above, I was a bit surprised that J.C. Tuccille’s Courts torn over Guantanamo torture suggests that the first military tribunals convened since World War II lack credibility.
The Examiner.com column cites three legal rulings, two of which were resolved in favor of Gitmo detainees and an ACLU Freedom of Information Act fishing expedition as justification for concern.
One judge refused to instruct an SMC jury to accept a narrow definition of torture requested by the prosecution and another SMC judge threw out a confession due to “mental” torture.
President-Elect Obama may not have to grant terrorists “OJ trials” in the United States after all, even if he still insists he will.
The rules are working, and even public defenders of accused criminals admit it. Some on the left seem to always seek opportunities to pass new laws when old ones are violated. Murder has been illegal since soon after Cain slew Abel, but we don't re-write murder laws after every homicide. No, we prosecute defendants.
In the other case, the ACLU was denied access to unredacted transcripts of the Combatant Status Review Tribunals (CSRT) of 14 prisoners now held at Gitmo who claim abuse and torture while in CIA custody. That ruling was correct on at least two grounds:
1) The prisoners can testify at their own trials concerning alleged mistreatment, and so, the information sought would be repetitive; and
2) The U.S. Supreme Court has already upheld the CSRT procedures and the right of the President, in accordance with millennia of war law, to determine the identity of enemies of the United States and to hold them until the cessation of hostilities, if captured.
One might argue, after the fact, that the Hamdan case was redundant given the power to detain even legal POWs, much less illegal enemy combatants like him, indefinitely until the war ends. One might also argue that only cases that seek to administer capital punishment need be tried.
But that ignores the increasing possibility, especially given the success of the Surge in Iraq, and the lack of any successful attacks on America soil since September 11, 2001, that we will win the war. In that event, we surely wouldn’t want to have to release terrorists guilty of war crimes up to and including Osama bin Laden, should he be captured. Hence, the need for military tribunals to protect us from war criminals.
One thing this War on Terror has re-affirmed is the history of the United States as unique in its humanity in the conduct of war. Unlike our enemies who kill and torture innocents as a matter of policy, the United States punishes its own for misconduct well short of traditional definitions of painful inflictions of permanent injury.
For instance, the members of the rogue National Guard unit that “degraded” inmates at Abu Ghraib, are themselves serving jail sentences. There is no evidence of systemic torture carried out by the United States armed forces.
We honor all of our veterans today and especially, here at the Charlotte Examiner, those from Fort Bragg and Camp Lejune in the Tar Heel State that have been instrumental in keeping us safe since 911.
Mike DeVine’s Charlotte Observer and Minority Report columns
"One man with courage makes a majority." - Andrew Jackson
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