Guantanamo Bay detainees require new president's quick attention

The ACLU asks President-Elect Barack Obama
to keep his promise on Guantánamo Bay

President-Elect Barack Obama has promised to close the controversial detention center for accused and suspected terrorists at Guantánamo Bay, in Cuba. The detention center has become a lightning rod for international criticism revolving around the quality of American justice, the ability and willingness of the government to prove its accusations in a credible court of law, and even the use of torture to extract confessions. Not surprisingly, the American Civil Liberties Union took out a full-page ad in the New York Times calling on the new president to make the shut-down of the detention center and the just disposition of the suspects job-one for his new administration.

Not everybody is on-board with that program, however. Michael A. DeVine, the Charlotte Law & Civil Rights Examiner, sees little to worry about in the proceedings at Guantánamo Bay. "The rules are working, and even public defenders of accused criminals admit it," he says.

Well ... not quite. The anonymous public defender he quotes as endorsing the Guantanamo military commissions actually said,"this does not prove that we have a good system. Rather, it proves that a really bad system appeared to have worked right in this instance."

Really bad? How bad?

So bad that Army Lieutenant Colonel Darrel Vandeveld, a U.S. military prosecutor at Guantanamo Bay, resigned because of ethical qualms over the way the government conducted the prosecution of Mohammed Jawad. In a formal declaration (PDF), Vandeveld laid out his concerns "about the slipshod, uncertain 'procedure' for affording defense counsel discovery." He described procedures in the military commissions as so "appalling, they deprive the accused of basic due process and subject the well-intentioned prosecutor to claims of ethical misconduct."

Vandeveld also protested Mr. Jawad's mistreatment in Guantánamo Bay's "frequent flyer" program -- a colloquial term for a sleep deprivation technique meant to disorient prisoners. It was supposedly banned in 2004, but investigators found evidence of its use later.

Vandeveld was in good company when he resigned. He followed in the footsteps of Col. Morris D. Davis, the former chief prosecutor at Guantánamo Bay, and a hard-liner who had previously described sympathy for detainees as "nauseating." Col. Davis resigned his post in protest of political interference with the legal process and the use of evidence obtained by waterboarding and other forms of torture. He testified for the defense in the Salim Hamdan case.

In fact, at least six prosecutors -- Major John Carr, Major Robert Preston, Captain Carrie Wolf, Lt. Col. Stuart Crouch, Davis and Vendevelde -- are known to have resigned or refused to participate in prosecutions in protest of the suppression of exculpatory evidence, the use of torture, and other flaws in the morality and credibility of the military commissions in place at Guantánamo Bay.

According to the Wall Street Journal, in the case of the defendant he was supposed to prosecute, "Col. Couch would uncover evidence the prisoner had been beaten and exposed to psychological torture, including death threats and intimations that his mother would be raped in custody unless he cooperated."

Even the barriers to moving the detainees to new prisons and bringing them to trial under the protections provided by the U.S. criminal courts or the military courts are testimony to the fundamental failures of Guantánamo Bay and the military commissions. As Newsweek points out, "In a federal court, an Al Qaeda defendant held for years at a secret CIA site could complain that his right to a speedy trial was violated, that he was never read his Miranda rights, that the evidence against him did not go through a proper chain of custody and that confessions were gleaned through coercive interrogations."

Simply put, in its zeal to hold prisoners indefinitely and run them through kangaroo courts, the Bush administration put in place policies and procedures that legitimate U.S. courts would consider utterly ruinous to the pursuit of justice in any given case. The abusive detention of prisoners and laughable legal standards of the military commissions at Guantánamo Bay may have rendered it impossible to credibly determine the guilt or innocence of the remaining detainees.

In his defense of the military commissions, Michael A. DeVine writes, "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." True. So why did we rewrite the rules this time around? Why didn't we use the existing criminal courts or military courts which have already been tested, rather than create a flimsy new legal system out of thin air, only to find that many of the legal experts chosen to staff the new system find it repugnant and unjust?

And how far down this path to inventing a new, convenient sort of justice is Mr. DeVine willing to go? He may have answered that question when he wrote:

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.

Indefinite detention until the war ends? Given that war has never been declared, and that we face a rather amorphous enemy with no clear chain of command, the end of the war may be hard to recognize -- and a long time coming.

That's an awfully extended sentence in an abusive system for prisoners who have been convicted of nothing.

Contact J.D.: civilliberties (at) tuccille.com