a bird and a bottle


Sorting Things Out At Guantanamo
March 29, 2007, 2:27 pm
Filed under: civil rights, criminal justice, news, news & views, politics, war, wider world

I’ve been avoiding writing about Guantanamo.

I’m not sure exactly why, but I think it has something to do with the size of the can of worms I’d be opening.

Am opening.

There’s been a lot of fanfare over the last few days about the resolution of two cases at Guantanamo: David Hicks’s guilty plea and Khalid Sheikh Mohammed’s confessions. Many people see it as a step toward resolution — toward the end of the indefinite detentions at Guantanamo.

Today, Adam Liptak, writing in the NY Times, puts the Hicks plea and the Mohammed confession in perspective. These resolutions, he writes, do not say much about the efficacy or fairness of the system that the Bush Administration has established for adjudicating cases at Guantanamo. In fact, says Liptak, in a regular criminal justice system, these processes would be aberrant. Critics of the Bush Administration policy (and I) agree:

To hear critics of the administration describe them, the conclusions of the two proceedings were tainted by past abuse and a justice system not worthy of the name.

“The proceedings themselves just demonstrate the absence of fixed rules,” said Jonathan Hafetz, a lawyer with the Brennan Center for Justice at New York University School of Law who represents other prisoners at Guantánamo. “This is justice on the fly.”

Of course, the administration’s defenders stand up for the procedures that are being implemented. But I’m left with the nagging feeling that no resolution that comes out of detention at Guantanamo can ever be considers just. I’m particularly concerned about the incentive system that detention at Guantanamo and labeling as an enemy combatant constructs. So is Liptak.

Guilty pleas are common in ordinary criminal cases, too, of course. But in a garden-variety criminal prosecution, the parties bargain, in the famous phrase, in the shadow of the law.

In the usual case, defendants make a rational calculation based on the strength of the evidence against them, the state of the law and, most important, outcomes in earlier cases. If defendants think a plea will result in a shorter sentence than the likely one at trial, discounted by the possibility of acquittal, they plead guilty.

None of that holds at Guantánamo. The incentives and calculations are quite different there.

Mr. Hicks, for instance, was bargaining in the shadow of many things — the conditions at the base, international diplomacy, homesickness and the possibility of indefinite detention without charge. But he was not, for the most part, bargaining in the shadow of the law.

The statute under which he was to be tried was brand new and untested. The relevant regulations are as yet largely unwritten. There is no body of similar trials to set the parameters for settlement discussions.

If the President (et al) want these “trials” and “pleas” to be taken seriously, they need to provide the same protections to alleged enemy combatants as are provided to American defendants; due process has got to mean something, and people need to be entitled to counsel from the beginning of the process. Currently, detainees are not entitled to an attorney for the hearings at which they are designated “enemy combatant.” I’m guessing that once that label is attached to a person, it tends to stick. The presumption of innocence vanishes. The trial, if there is to be one, becomes a farce. And a guilty plea becomes the only way out and is inherently coerced.

I, among many, believe Guantanamo should be closed, and was saddened but not surprised by Bush’s statement last week that the prison will remain open at least until the end of his tenure. But given that it’s sticking around, the administration has got to stop pretending that what’s going on there is acceptable and that Hicks and Mohammed are examples of how and why.

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6 Comments so far
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No need to be hesitant on this one, Bean. Can of worms? Absolutely! One of the many foundations of our political and legal system wrecked by the Bush/Cheney admin. No time to embellish now; Traveling to Savannah nest week to see Gen Jenn. Later …

Comment by Swampcracker

Even Robert Gates said that Guantanamo should be closed down, though his proposed alternative still doesn’t involve the judicial system because “there is the potential of them being released” (direct quote, sadly).

Comment by Alon Levy

Gates did say that, and I was encouraged. What troubles me is how quickly he has folded and been brought into the Bush cabal.

I’m a little confused about the Gates quote, Alon (perhaps because it is just so ridiculous that my brain cannot comprehend): do you mean that he believes a failure of his alternative is that someone might potentially be released some day and this is a bad thing? Oy.

Comment by bean

No, he believes the alternative should be some military prison system, presumably on US soil, wherein they’ll be imprisoned for life. He says it’s only for the most dangerous Guantanamo detainees, without mentioning what to do about the rest, but how can you determine how dangerous a detainee is without a fair trial?

The full quote from the article is,

Gates said the challenge is figuring out what to do with hard-core detainees who have ”made very clear they will come back and attack this country.”

He said it may require a new law to ”address the concerns about some of these people who really need to be incarcerated forever, but that doesn’t get them involved in a judicial system where there is the potential of them being released,” Gates told the House Defense Appropriations subcommittee.

Comment by Alon Levy

Ick. Though I guess the upside is that if the prison is on American soil, there would be no doubt that the protections of Due Process apply. That, at least, would be a step in the right direction, and the government would not be able to hold them indefinitely without good cause (and a hearing and a lawyer, etc.).

Comment by bean

The recently broadcast video recorded “deep apologies” made by the British soldiers in Iranian custody is a good reminder of just how empty gitmo guilty pleas are.

Comment by professorplum




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