First Published: 2006-09-30

US law keeps most at Guantanamo out of court

New tribunal system bars 455 Guantanamo prisoners from challenging detention in US courts.


Middle East Online

By Jane Sutton MIAMI

Innocence is irrelevant over there

A new US plan to try suspects at Guantanamo would grant a few more rights to prisoners charged with war crimes but strip away all legal recourse for the majority who will never face charges.

Congress approved legislation on Thursday to create a new tribunal system to try foreign captives at the US naval base on Cuba. President George W. Bush was expected to quickly sign a bill his administration says is crucial in bringing to justice men like alleged September 11 mastermind Khalid Sheik Mohammed.

But it also bars the 455 Guantanamo prisoners from challenging their detention in the US court system, and throws out hundreds of lawsuits already filed by detainees asking to see the evidence that has kept many incarcerated at Guantanamo for more than four years.

"Now you've got ... rules to try Khalid Sheik Mohammed and he gets all these protections and if you're not him, sorry," said Jumana Musa, an Amnesty International official.

Prisoners convicted of war crimes in the Guantanamo tribunals can still appeal their cases to the federal appeals court in Washington, and then the US Supreme Court.

But the military has long said that only about 75 of the Guantanamo detainees would ever be charged with war crimes.

"Their conduct warrants removing them from the battlefield, and keeping them off the battlefield, but is not so egregious that they should be held criminally liable," said Air Force Col. Moe Davis, chief prosecutor for the military tribunals.

The revised tribunal system partially addresses some objections raised by military defence lawyers who won a Supreme Court challenge declaring the original system unlawful.


The new version gives those charged with war crimes the right to dismiss their military lawyers and act as their own attorneys. It allows the accused and the jurors to see the same non-classified summaries of secret evidence -- the old system would have allowed jurors to see secret evidence not shown to the accused.

The new version makes it more difficult to obtain a conviction by requiring that at least five military officers serve on each tribunal. The old system permitted as few as three to render a verdict. Death penalty cases now require 12 jurors, up from seven under the old rules, and their sentencing decision would have to be unanimous.

"Basically what it's done is adopt the general rules of the court martial, with no less than five on a jury," Davis said. "To me it looks like a very workable, very fair system."

Military lawyers defending the 10 Guantanamo prisoners charged under the old system could not immediately be reached for comment.

Critics said the new law still left the door wide open for the use of hearsay evidence and statements obtained through coercion -- though not evidence obtained through torture -- so long as the judge finds the information relevant.

"This is crazy," said Eugene Fidell, president of the National Institute of Military Justice. "We are permitting the use of evidence obtained by illegal coercion, if it's reliable and if some (military) judge thinks the interest of justice is served by it."

For detainees not charged in the war crimes tribunals, the only ticket out of Guantanamo is via diplomatic negotiations, or through annual reviews similar to parole hearings.

At those administrative hearings, three military officers question the prisoner and review files to determine if he is still a threat or possesses information useful in combating terrorism. No lawyers are involved and detainees are not allowed to see secret evidence against them.


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