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.

< Senator Harkin's Bill to Close Guantanamo | Lugar Changes Words, But Not Position on Iraq >
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    Not sure how much weight (5.00 / 1) (#1)
    by HK on Tue Jun 26, 2007 at 05:20:18 AM EST
    my signature will carry, me being a non-US citizen with no voting power, but I signed the petition anyway.  Guantanamo is shamful; America is capable of so much more.

    BTW Jeralyn, you quoted the same passage twice above, beginning 'Many critics...'

    Fixed (none / 0) (#7)
    by Jeralyn on Tue Jun 26, 2007 at 09:11:53 AM EST
    Thanks, HK, it's fixed now.

    I am ashamed (5.00 / 1) (#8)
    by Peaches on Tue Jun 26, 2007 at 09:31:26 AM EST
    I watched The the Documentary film Road To Guantanamo last night.

    It was a good film. I am ashamed to be an American today after watching it. We are capable of more, but we sunk to a new low. We have behaved disgustingly since 9/11 in our treatment of humans (call them what you want - killers, terrorists, whatever - but they are first and foremost, humans, like me, like you.)at places like Guantanamo. These people deserve to be treated better and given fair trials before impartial juries and taken out of the military's hands.

    It's also up (none / 0) (#9)
    by Edger on Tue Jun 26, 2007 at 09:47:08 AM EST
    on YouTube now, Peaches. Shorter versions.

    Part I... Part II


    Cut of nose to spite the face (1.00 / 2) (#2)
    by Fritz on Tue Jun 26, 2007 at 08:14:34 AM EST
    Most of the detainees could have been killed on-sight.  Why do you wish to extend democratic criminal safeguards to terrorists picked up off a foreign battlefield?  If the efforts of these holier than thou human rights groups prevail, more innocent people will die because the military will no longer attempt to capture, but will simply kill to eliminate legal hassles.  That means that more Americans troops & civilians will die as a result of this.  I don't like this war with 7th century monsters, but when Khalid Sheikh Mohammad was captured, his first demand was to have a lawyer.  

    In 1776, Admiral Howe had an opportunity to crush our revolution, but he wanted to appear civilized.  Washington escaped to later have major victories at Trenton & Princeton.  We are a good people, but we should never allow our civility to be used as a weapon against us.  Our advisory must know we are fully capable to use what ever means necessary to destroy them.  Fine Americans on the front lines are diligently working to expose these bastards, most of what the Administration was attempting to protect, their ability to do their jobs effectively without the threat of your prosecution.

    could have been killed on-sight? (5.00 / 1) (#3)
    by Edger on Tue Jun 26, 2007 at 08:28:20 AM EST
    Are you nuts, fritz? (sorry - that was rhetorical)

    It was much better deal to sell them to the American suckers:

    They fed them well. The Pakistani tribesmen slaughtered a sheep in honor of their guests, Arabs and Chinese Muslims famished from fleeing U.S. bombing in the Afghan mountains. But their hosts had ulterior motives: to sell them to the Americans, said the men who are now prisoners at Guantanamo Bay.
    Gary Schroen said he took a suitcase of $3 million in cash into Afghanistan himself to help supply and win over warlords to fight for U.S. Special Forces.

    "It wouldn't surprise me if we paid rewards," said Schroen, who retired after 32 years in the CIA soon after the fall of Kabul in late 2001.

    But's it's ok, fritz. You're off the hook.

    They've already fixed it so you get to plead the incompetency defense:

    The U.S. departments of Defense, Justice and State and the Central Intelligence Agency also said they were unaware of bounty payments being made for random prisoners.

    The U.S. Rewards for Justice program pays only for information that leads to the capture of suspected terrorists identified by name, said Steve Pike, a State Department spokesman. Some $57 million has been paid under the program, according to its web site.


    What ever means necessary. (none / 0) (#5)
    by Fritz on Tue Jun 26, 2007 at 08:56:43 AM EST
    Good, let it be known that one can not trust their hosts.  Excellent, eliminate sanctuary.  I find it odd that you would consider foreign nationals in Afghanistan fleeing US forces as innocents.  

    I'm sure you also find it odd (none / 0) (#6)
    by Edger on Tue Jun 26, 2007 at 08:59:52 AM EST
    that US Forces are buying innocents.

    It happens (1.00 / 1) (#11)
    by Fritz on Tue Jun 26, 2007 at 10:00:29 AM EST
    You get the GAO to investigate such occurrences.  If the green eyeshades are going to join the lawyers to fight this war, heaven help us.  I realize liberals see the world from the Hollywood mindset, retakes, everything known in advance, but the world is not that simple.  

    You're right. (none / 0) (#14)
    by Edger on Tue Jun 26, 2007 at 10:17:17 AM EST
    It's not that simple, fritz.

    You should get out more. Talk to a few "liberals".


    It would be a "liberal" (none / 0) (#16)
    by Edger on Tue Jun 26, 2007 at 10:20:00 AM EST
    that would holler if you were sold into Gitmo, fritz.

    But you wouldn't. Except from on your knees.


    we will never know (5.00 / 2) (#4)
    by Jen M on Tue Jun 26, 2007 at 08:34:15 AM EST
    if they are terrorists or not. The government has made it obvious that it is irrelevant if they aren't.

    So is General Powell Wrong? (5.00 / 1) (#10)
    by Molly Bloom on Tue Jun 26, 2007 at 09:55:41 AM EST
    How do you know, BTW, that everyone in Gitmo was captured on the battlefield or are in fact terroists? Because Buch and Cheney said so, under the circumstances is not sufficient.


    .... Alger Hiss wasn't a Soviet spy. (1.00 / 1) (#12)
    by Fritz on Tue Jun 26, 2007 at 10:10:53 AM EST

    I gather you can't answer the question (5.00 / 1) (#27)
    by Molly Bloom on Tue Jun 26, 2007 at 04:12:16 PM EST
    So you are relying on the word of proven liars. Ok. I own a bridge in Brooklyn- would you like to buy it, I am offering a really great deal!


    Is General Powell a Neo Marxist? (none / 0) (#28)
    by Molly Bloom on Tue Jun 26, 2007 at 04:14:54 PM EST
    Of course (none / 0) (#17)
    by Wile ECoyote on Tue Jun 26, 2007 at 10:37:14 AM EST
    Everybody captured on the battlefield would be wearing a recognizable uniform with rank insignia, according to the Geneva conventions.

    point being ... (none / 0) (#22)
    by Sailor on Tue Jun 26, 2007 at 03:25:49 PM EST
    ... they weren't captured by us the were sold to us.

    Fritz advocates murder instead of trials (5.00 / 2) (#13)
    by Repack Rider on Tue Jun 26, 2007 at 10:15:21 AM EST
    Most of the detainees could have been killed on-sight.

    And then the corpses would have been declared "Al Qaeda" with no one available to dispute the designation.  Perhaps you have noticed.

    So if an American soldier murders an innocent Iraqi/Afghani there are no consequences, and you figure that it's safer and cheaper to kill people than to find out whether they are "enemies."

    It's the modern version of, "Kill 'em all and let God sort them out."  By dehumanizing those killed and captured and depriving them of a voice in the process, we have opened the door to torture.

    No wonder so many innocents have been killed, imprisoned and tortured with absolutely no improvement in the safety of the United States.  No wonder our standing as a moral beacon has been not only tarnished, but destroyed for generations to come.  

    In the future we will be morally identified with the Nazis, the Stalinist Soviet Union, and Mao's China.  We are becoming an African or South American dictatorship with money and a real army, unbound by human rights.

    The moral depravity of those who support the atrocity known as Guantanamo Bay should be enough to deprive them of citizenship, since they clearly hate everything our country was founded to stand for.


    Other way around (1.00 / 1) (#18)
    by Fritz on Tue Jun 26, 2007 at 11:54:05 AM EST
    To equate the United States with regimes bent on absolute domination of the people is neo-marxism's take on the post-Soviet world.   The United States is not the problem in Iraq or Afghanistan; it's the people that do in fact have the ideology of the regimes you accuse the United States as having.

    Not the problem... (5.00 / 1) (#21)
    by desertswine on Tue Jun 26, 2007 at 03:06:29 PM EST
    "The United States is not the problem in Iraq or Afghanistan..."

    Perhaps you can explain this to her...

    I'm sure your empty words will be such a comfort.


    Thanks for not linking to the (none / 0) (#24)
    by Edger on Tue Jun 26, 2007 at 03:44:59 PM EST
    article the picture came from, Desertswine. I sometimes almost wish I didn't ask so many questions......
    Americans were horrified this week when CBS News broke Lara Logan's story of US soldiers uncovering an orphanage in Iraq in which the children were left naked, chained to their beds, malnourished and generally neglected.  How could human beings treat other human beings, especially children, this way?  The natural instinct was to pick up a child, and hold them, as CBS' follow up stories showed our soldiers doing.

    How then, can we account for this: This weekend, US warplanes working with Special Operations units bombed a set of buildings in Afghanistan in the belief that Taliban or al Qaeda fighters were hiding there.  The initial AP report carried by MSNBC noted that when the smoke cleared, searchers found the bombs had killed seven children.

    This is what keeps me awake... (none / 0) (#25)
    by desertswine on Tue Jun 26, 2007 at 04:07:04 PM EST
    at night. Have you ever seen such eyes?

    Yes... (none / 0) (#26)
    by Edger on Tue Jun 26, 2007 at 04:09:30 PM EST
    I don't want to see anymore like that....

    You've explained all this (none / 0) (#19)
    by Edger on Tue Jun 26, 2007 at 01:43:46 PM EST
    to the Iraqi people and to the Afghani people, of course, fritzo?

    You have, haven't you?

    Carefully, I hope.

    The Iraqis, at least, might like to have a word with you.

    I'm sure the Afghanis might have something to say to you as well.


    Neomarxism? (none / 0) (#20)
    by Al on Tue Jun 26, 2007 at 01:44:12 PM EST
    I hadn't heard that one before.

    The United States is not the problem in Iraq or Afghanistan

    The US is certainly not part of the solution.

    It is quite clear that military occupation only serves to aggravate existing problems and create new ones. Six years into the occupation of Iraq and Afghanistan, and what have you achieved? What has Guantanamo achieved?

    But you probably don't care. Basically, you're angry, and you want to kill people.


    but they are the same (none / 0) (#23)
    by Sailor on Tue Jun 26, 2007 at 03:27:34 PM EST
    To equate the United States with regimes bent on absolute domination
    that's exactly the neoclown position. Take over the ME and dominate the world.

    Secret prisons, kidnapping, torture, no habeus ... 'ye shall know them by their actions.'


    Fine Americans (5.00 / 2) (#15)
    by Al on Tue Jun 26, 2007 at 10:17:18 AM EST
    Fine Americans on the front lines are diligently working to expose these bastards

    The moment you waterboard someone, you cease to be a "fine American".


    hearsay evidence (none / 0) (#29)
    by diogenes on Tue Jun 26, 2007 at 09:26:07 PM EST
    There was no ban on hearsay evidence inthe International Criminal Court, the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Special Court for Sierra Leone.  The Nuremberg trials also did not ban hearsay evidence.  This is part of Morris Davis' argument in the article, but interestingly is not excerpted.