Guantanamo: After Acquittal, More Detention
60 Minutes tonight featured a segment with Ed Bradley on the Guantanamo military tribunals. The defense lawyers, all active military members in uniform, blasted the procedures. A White House lawyer, Bradford Berenson, who helped write the President's order authorizing the tribunals, defended them vigorously. A military prosecutor seemed less sure, but toed the party line, and said we should wait and see how they play out.
Only four of the more than 550 detainees have had criminal charges brought against them. What will happen to them if they are acquitted? They will go back to their cell, until the end of the war on terror, which could be decades.
So why give them a trial at all then? The military defense lawyers said it's a show trial, meaningless. Berenson, the White House lawyer, answered:
"If you’re acquitted by a military commission proceeding, it may mean that you are not a war criminal," says Berenson. "It doesn’t mean that you’re not an enemy combatant who can be held by our forces until the end of hostilities."
Some highlights:
Navy Lt. Cmdr. Charlie Swift is one of the team of military lawyers appointed by the Pentagon to defend those accused of being the nation’s worst enemies. Does he believe that the prisoners in Guantanamo are getting a fair shake? "Under the rules, as they’re written right now, no way," says Swift. "The rules are written from the -- to make every possible accommodation for the prosecutor, with no thought to, 'Does this jeopardize a right of the accused?'”
Lt. Col. Sharon Schaffer, a former Air Force Judge, who turned down a substantial promotion to continue defending her detainee, gave this explanation of her role:
"Different people have been mandated to defend freedom in different ways, whether you’re out in the field carrying a weapon or whether you’re guarding Camp Delta down at Guantanamo Bay, Cuba," says Shaffer. "I am defending America and its principles and its notions of liberty and justice."
The White House lawyer and defense lawyer Lt. Cmdr. Charlie Swift also disagreed on whether Bush was intruding into the court's power with the tribunals or vice versa.
"The federal courts aren’t intruding into the president’s power. The president is intruding into the court’s power," says Swift. "As a military officer, I don’t question the president’s ability to fight and win a war. That’s not what the president is talking about here. What the president’s talking about is handing out criminal sanctions, including the death penalty, to people who are already prisoners. He’s not talking about fighting. He’s talking about justice. And now what the government is saying is, “don’t you dare intrude into the president’s powers to hand out justice.”
It's not the executive's job, particularly as Commander in Chief, to mete out justice. That right belongs to Congress in the case of defining crimes and setting penalties, and to the courts if it's time to impose a penalty.
The Supreme Court will decide the issue.
Last November, a federal judge agreed with Swift, ruling the commissions are unlawful because they are “fatally contrary” to established standards of justice. The government is appealing.
This is just another reason that appointment to the Supreme Court is such a critical issue.
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