We would howl — and rightly so.
Suppose the following American commandos are captured in North Korea. For 18 months they are held in small cages with no access to lawyers or courts, no charges, and denied prisoner-of-war status. Imagine our reaction when, at long last, North Korea announces that they may be put on “trial” under the following conditions:
They will be tried by panels of North Korean military officers, hand-picked by Kim Jong Il’s minister of defense, on whom their careers depend. Only one need be a lawyer.
Their trials may be closed on grounds of North Korean national security.
They will be defended by North Korean military lawyers.
They may request civilian lawyers, but only North Koreans, who must first be granted security clearances by the government.
They cannot be assured of private communications with their civilian lawyers; North Korea’s military reserves the right to eavesdrop on their conversations.
Their civilian lawyers may be denied access to secret evidence against them and excluded from closed hearings.
Their civilian lawyers may not make any public statements about the case without military approval.
Their civilian lawyers may not discuss the case with other lawyers or outside consultants, may not leave the base without military permission, and may not request any delay to attend to other professional commitments.
They may be convicted and sentenced to death on the basis of evidence that would not be admitted in a court of law.
They may not ask any court to review the lawfulness of their detention or trial.
If convicted, they may not appeal to any court. They can appeal findings of fact against them only to Kim Jong Il or his minister of defense. They can appeal questions of law only to a second panel of military officers (only one of whom need have experience as a judge), and then, again, to Kim or his minister.
Even if they are found not guilty, North Korea reserves the right to imprison them indefinitely, until it deems America no longer a threat.
None of us would stand for such an outrage. Our State Department would denounce North Korea for violating human rights and minimum international standards for fair trials and due process of law.
The Bush-Rumsfeld rules
Yet these rules for military trials have in fact been announced, not by Kim, but by President Bush and Defense Secretary Donald Rumsfeld.
The United States holds more than 600 prisoners at Guantanamo Naval Base in Cuba–most for 18 months now–with no lawyers, no courts, no charges, and no recognition of POW status. Last month the president designated six prisoners as eligible for trial by military commission, under the rules summarized above. None has yet been charged or tried.
The U.S. has not identified the six. However, the British government has disclosed that two, Feroz Ali Abbasi and Moazzem Begg, are British citizens.
The British public takes a dim view of our proposal to try their citizens under the Rumsfeld rules. One Labor Party member thundered in Parliament that such a trial will amount to a “kangaroo court.”
If any nation has the clout to secure fair trials for its citizens held at Guantanamo, it should be Britain. Prime Minister Tony Blair is Bush’s closest ally. But even the British have fallen short.
Until recently, they kept mum. When the first of nine British citizens were brought to Guantanamo in early 2002, British officials were allowed to visit them. Unlike Pakistan, another of the 42 governments whose citizens we hold, Britain lodged no formal diplomatic protest.
The families of British prisoners attempted legal action, but to no avail. American courts have ruled to date (in cases where I assist the lawyers) that our courts have no jurisdiction over foreign citizens in Guantanamo, because it remains under technical Cuban sovereignty–even though the U.S. holds the base under a century-old lease that grants the U.S. complete and exclusive control.
The International Committee of the Red Cross, United Nations High Commissioner for Human Rights, and Inter-American Commission on Human Rights have all appealed to the U.S. to provide the prisoners some form of hearing before a competent tribunal to review their status. The U.S. has rejected all such appeals.
Last year the family of one prisoner asked a British court to order their government to intervene on his behalf. Describing his plight as a “legal black hole,” the British Court of Appeal in November “made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr. Abbasi may be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal.” But the court ruled that it could not tell British diplomats how to do their jobs.
When Britain disclosed last month that its citizens Abbasi and Begg may be among the first to be tried by military commission, public reaction was swift. Two hundred members of Parliament demanded that they be brought home, where they could receive a fair trial. Tony Blair asked for and got Bush to suspend proceedings against British citizens, pending further discussions.
Faithful ally in quandary
Blair faced a dilemma. Repatriating prisoners for trial in Britain was risky. British courts might well dismiss any case against prisoners held 18 months without lawyers.
And, as one government official told London’s Sunday Telegraph newspaper, “even to begin proceedings we would need statements and eyewitness accounts which we know we haven’t got.”
Also, as a British official told the Telegraph, “[It] could be embarrassing if they were released on their return after the U.S. has branded them as major players in a terrorist network.”
The other, less popular option was to negotiate a better set of rules for U.S. military trials. Blair dispatched to Washington his attorney general, Peter Goldsmith. After the meetings, the Pentagon announced that based on its review of the evidence against Abbasi and Begg, it would not ask for the death penalty. Nor would it monitor their conversations with civilian defense counsel.
Among other concessions, Goldsmith announced that a British lawyer could be a “consultant on the defense team” and the U.S. would “actively consider” allowing any prison sentence to be served in Britain.
Whatever this deal may do for Blair politically, it creates new legal problems without solving the old ones. Are there now to be two sets of rules for military commissions? The Goldsmith rules for favored nations such as Britain–and Australia, which cut a similar deal for one of its citizens–and the Rumsfeld rules for everyone else?
If so, how does the U.S. avoid charges of discrimination? The Pentagon says it decides how to handle each case based on its review of the evidence. But if the result turns out to be two sets of rules, no one outside the chain of command will believe this claim.
And the underlying problems remain. As Abbasi family lawyer Louise Christian told The Guardian newspaper, even under the Goldsmith deal, military commission trials still “breach all international norms.” For example, they “will be in front of judges who are military officers” and who are not independent of their government or their commander in chief, who in July publicly declared that he was “certain” that Abbasi and the other prospective defendants are “bad men”.
Lawyers’ groups on edge
Nor can defendants be properly represented, according to the U.S. National Association of Criminal Defense Lawyers, whose members would ordinarily hasten to serve as civilian defense counsel. Incoming President Barry Scheck says the group resolved that it is “unethical for a lawyer to represent a client under current conditions for military tribunals, and if a lawyer chooses to do so, he or she must contest all of those unethical conditions.”
And the American Bar Association recommends that the commission rules be revised to allow civilian defense lawyers, once granted security clearances “full participation” in the trial.
But to protest the Rumsfeld and Goldsmith rules merely for violating international standards and professional ethics is too mild.
Stuart Taylor Jr., writing in the National Journal, puts it best: Guantanamo is “a betrayal of what America stands for.”
