The First Trial at Guantanamo

“Where else in the world,” Mr. Ben Wizner, an American Civil Liberties Union lawyer and observer of the Guantanamo trial, said after court one day, “is someone being prosecuted for a crime who is already serving a life sentence and will continue to serve one if he’s acquitted?”

For the past few years the treatment of prisoners of war  held at detention centers like Guantanamo Bay and Abu Ghraib has been the subject of much controversy. U.S. officials have used torture techniques including but not limited to shackling prisoners “to the floor in fetal positions for more than 24 hours at a time,” starvation, and “allowing them to defecate on themselves”  on prisoners- techniques that are in direct violation of the UN Convention against Torture, a document that the U.S has signed and ratified.

Salim Hamdan, Osama Bin Laden’s driver, is a Yemeni National who was turned over to the U.S. by the Afghani government in early 2002. Upon his arrest he was taken to Guantanamo Bay, and is currently on trial and charged for material support for terrorism and conspiracy. During his time in prison he was denied a lawyer and he was also prevented from making even one phone call to his family until almost a year after his arrest. He has confessed to being trained in a terror camp and to being present when Bin Laden was making preparations for the 9-11 attack. But Salim Hamdan also alleges that he was tortured and coerced into making confessions. It was proven in 2003 that Hamdan was subjected to Operation Sandman, a sleep-deprivation program, for 50 days.

On June 12, 2008  the Supreme Court ruled in the case of Boumediene v. Bush that Guantánamo detainees have the constitutional right to habeas corpus.  Habeas corpus is the right to challenge the factual basis for detention before an impartial judge in U.S. federal court. (humanrightsfirst.org) This appears to be a victory for civil rights activists in the U.S., who have been fighting for the right of a fair trial for detainees as well as the right of habeaus corpus- a right that the Bush administration had deemed inapplicable to prisoners arrested during the global war on terror. The trial also appears to be a victory for international law and more notably for the rules of the 3rd geneva convention . The 1949 convention for the treatment of prisoners of war states  that “The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter.”

But it has been apparent from the first week of the trial that it really is no different than any of Hamdan’s previous military commission trials.

First of all, although the Judge, Captain Keith J. Allred of the U.S. army did discount a few pieces of coerced evidence -confessions Mr. Hamdan made in Afghanistan- the confessions he made at Guantanamo are believed to be coerced as well, and many of these coerced statements are being used as evidence against him. Second, Mr. Hamdan has been denied the right  to challenge his detentions in a federal court ( which the Supreme Court ruled in 2007 should apply to all detainees ). In addition he has been denied a right against self-incrimination– which is actually a right that is guaranteed by the fifth amendment. Since this is a U.S. trial and Mr. Hamdan has been given the right to defend himself by the Supreme Court ruling in 2007, many believe that he should be given the right against self-incrimination. It could be argued that the fifth amendment does not apply to non-U.S. citizens, but the fact that Mr. Hamdan is not even allowed to challenge the evidence presented completely undermines the point of a fair trial. Lastly, the Bush administration has stated that even in the event that the defendant is acquitted and found not guilty of all charges, he could still be held in captivity indefinitely.

So upon taking a deeper look, the trial in reality is nothing more than a show-its made to appear to us as a triumph for the American values of fairness and justice, its made to show the world that when the U.S. government is placed under heavy pressure and scrutinized by its own people and the international community for its horrendous treatment of detainees, it will actually do the right thing. But after countless tirades by President Bush of how the Geneva Convention does not apply to prisoners of war in this new global war of terror, this trial is nothing more than the desire of the Bush administration to salvage a little bit of American support, by appearing to uphold justice.

The real triumph for the justice movement  would be a fair trial that actually secures the right of habeaus corpus for the defendant. Regardless of the outcome of the case, as Americans, only then would we be content that our government is upholding the ethical standards that we are proud to say differentiates our justice system from all other justice systems around the world.

~ by nollla on July 29, 2008.