Two Views on Guantanamo: Which Is Yours?
Tomorrow at 2:00 pm ET, the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties Oversight will hold a hearing on Habeas Corpus and Detentions at Guantanamo Bay.
Morris D. Davis is the chief prosecutor in the Defense Department’s Office of Military Commissions. In the New York Times today, he provides what he believes to be a vigorous defense of the commission procedures.
Let's take a look at his arguments, which in my view, by their omissions, amount to misreprsentations:
Many critics disapprove of the potential admissibility of evidence obtained by coercion and hearsay. Any statement by a person whose freedom is restrained by someone in a position of authority can be viewed as the product of some degree of coercion. Deciding how far is too far is the challenge. I make the final decision on the evidence the prosecution will introduce. The defense may challenge this evidence and the military judge decides whether it is admitted. If it is admitted, both sides can argue how much weight, if any, the evidence deserves. If a conviction results, the accused has the assistance of counsel in four stages of post-trial appellate review. These are clearly robust safeguards.
After arguing in favor of the hearsay standard used at the tribunals, he concludes:
Guantánamo Bay is a clean, safe and humane place for enemy combatants, and the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes. Even the most vocal critics say they do not want to set terrorists free, but they scorn Guantánamo Bay and military commissions and demand alternatives. The facts show the current alternative is worth keeping.
Mr. Davis omits some fundamental features of the Military Commissions.
The decision to convict is by two-thirds vote, not unanimity as in a US jury trial. The commission itself of course, in effect the jury, is made up of military officers not members of the public.
....any evidence, including hearsay (in which a witness says he/she was told or heard something from someone else), and some obtained by coercion, will be allowed, "if the military judge determines that the evidence would have probative value to a reasonable person".
Evidence that contains classified information will be summarised to protect its sources, so the accused will not have a complete picture of the case against him.
....Evidence obtained under torture will not be permitted, but evidence obtained by coercion could be.
If evidence was obtained before 30 December 2005 (that is, the date when the Detainee Treatment Act came into force, outlawing "cruel, inhuman or degrading treatment"), the military judge can allow the evidence if "the totality of the circumstances renders the statement reliable" and "the interests of justice would best be served".
Detainees may not invoke the Geneva Conventions in any court action. The CIA may still use secret prisons to interrogate suspects using coercion but not torture. The decision as to what separates coercion from torture is up to the President.
The ACLU has a fact sheet with a much different picture of the Military Commissions Act, particularly with respect to Habeas Corpus, which Morris Davis fails to discuss:
How Does the Military Commissions Act Take Away Habeas Rights?
Section 6 of Military Commissions Act strips any non-citizen, declared an "enemy combatant" by any president, of the right to be heard in court to establish his or her innocence, regardless of how long he or she is held without charge. This habeas-stripping provision applies to the detainees held in U.S. custody at Guantanamo Bay and elsewhere. It violates the Constitution and basic American values.
Is it Constitutional to Strip a Person of Their Habeas Rights?
No, Section 6 of the Military Commissions Act is unconstitutional and will eventually be struck down by the U.S. Supreme Court. Several cases challenging the law are already working their way through the courts.
Human Rights First this week presented this testimony (pdf) to the Helsinki Commission on the unfairness and illegality of the Military Commissions trials and Guantanamo. As they have said before:
The military commissions fly in the face of 200 years of U.S. court decisions by permitting evidence obtained through coercion – including cruel, inhuman and degrading treatment, if obtained before December 20, 2005. A coerced statement can be admitted if found to be “reliable,” sufficiently probative, and its admission is “in the interest of justice,” and if the interrogation techniques used to obtain the information are classified, it could be extremely difficult for a defendant to show that coerced evidence should not be admitted. Although evidence obtained through torture is not permitted in military commissions, there is an increased likelihood that convictions may rest on such evidence because the rules allow for coerced evidence and hearsay and permit the prosecution to keep sources and methods used to obtain evidence from the defendant.
Mr. Davis's picture of the appeals process is also skewed. As Human Rights First also noted:
The scope of judicial review of military commission decisions is restricted and inadequate. The review by the initial appeals court, the Court of Military Commission Review, is limited only to matters of law (not fact) that “prejudiced a substantial trial right” of the defendant. This provision would prevent the first appellate court, the U.S. Court of Appeals for the District of Columbia, and the U.S. Supreme Court from considering factual appeals, including possible appeals based on a defendant’s factual innocence.
The detainees at Guantanamo should be tried either pursuant to the rules for courts martial under the U.S. Code of Military Justice or in our federal courts.
Two bills to restore habeas corpus rights are pending in Congress — the Restoring the Constitution Act of 2007 (H.R. 1415, S. 576) and the Habeas Corpus Restoration Act (H.R. 1416, S. 185).
Today is the day. Use this petition to urge members of Congress to cosponsor and support the restoration of Habeas Corpus, close Guantanamo and put an end to the procedures of trial by military commission.
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