Pre-trial hearings that began Tuesday at the U.S. military base at Guantanamo Bay, Cuba, of prisoners taken in the U.S. "war on terrorism" are "designed to convict," says one expert.
The lack of attorney-client confidentiality, absence of an appeals process, classified testimony and the two and a half years that many detainees have been held without access to lawyers has produced a legal system tilted against the defendants, says Michael Ratner, president of the Center for Constitutional Rights (CCR).
The four suspects arraigned Tuesday include an accountant accused of working for the al-Qaeda terrorist group, a poet accused of writing terrorist propaganda, a man alleged to have been the chauffeur for al-Qaeda chief Osama bin Laden and an Australian who fought with the former ruling regime in Afghanistan, the Taliban, against U.S. forces.
The Australian, David Hicks, faces the broadest set of charges – conspiracy to commit war crimes, aiding the enemy and attempted murder for firing on coalition forces in Afghanistan.
International human rights groups and legal scholars have labeled the hearings "unfair," saying they violate fair process guidelines of both civilian courts and military court-martials.
The U.S. military tribunal process has not been used since the end of World War Two.
During the hearings the detainees will be read the charges against them, given an opportunity to enter a plea, and their attorneys can make motions.
Several of the defendants were not picked up on the field of battle, therefore, some observers also argue, should be not be tried as unlawful combatants.
"[The] military system [of justice] would be a court-martial, if they’re a prisoner of war, which would be the same proceedings a U.S. soldier is tried by," said Ratner, who represented several of the prisoners at hearings in the U.S. Supreme Court, in an interview.
Adding to the flawed process being used in the hearings, says Ratner, "the judges are all handpicked."
The Pentagon has argued that detainees captured in Afghanistan after U.S. forces attacked the country following the Sept. 11, 2001 terrorist attacks on New York and Washington do not qualify for courts-martial and do not fall under the protection of the Geneva Conventions because they were not taken while fighting for a regular army.
Under a military court-martial, defendants are permitted protections and rights – such as the ability to appeal a decision to a civilian court – but the military tribunals in Guantanamo include no such process.
"Courts-martial are a reasonably fair process," said Ratner. "They can throw out coerced evidence and they can appeal to the civilian criminal justice system."
Evidence gleaned over the past two and half years of detention can be used in the government’s case, despite the fact that, for most of their detention, the detainees had no contact with attorneys.
"They’ve been in custody for two and a half years without lawyers, so by definition [their testimony] is coerced," said Ratner.
Hearsay evidence gained from other detainees or informants can also be used in the tribunal hearings, and the government has defended its right to monitor conversations between attorneys and their clients, despite committing not to do so in some cases.
The administration of President George W. Bush has defended the tribunals as a balance between protecting the country’s national security and providing the defendants with due-process rights.
It has repeatedly pointed out the hearings incorporate many elements of the U.S. civilian legal system – suspects are presumed innocent until proven guilty, they cannot be forced to testify, and their guilt must be established beyond a reasonable doubt.
The hearings follow a June 28 Supreme Court decision that found that foreign "enemy combatants" held at Guantanamo have the right to go to court to argue that they should never have been detained.
The rulings amounted to an almost total rebuff of the administration’s assertions that the president, as commander-in-chief, had the right to indefinitely detain individuals whom it designated "enemy combatants" without charges and without access to counsel or the right to review their status before an independent court.
The hearings at Guantanamo will take place largely in secret, and details of the events are not expected to be made public any time soon.
A statement issued late Tuesday by the American Civil Liberties Union (ACLU) said that representatives of international human rights and legal organizations in Guantanamo as observers of the hearings have not been given satisfactory access to "key participants" in the proceedings.
"Defense officials declined a joint request by the groups to meet the presiding officer, prosecution attorneys, military commission translators and law clerks. Officials also barred the observers from accompanying 53 members of the national and international press who were granted access to visit detention facilities at Guantanamo Bay," it said.
Military defense lawyers are expected to attack the legitimacy of the process and to challenge the rules and procedures as well as the charges against their clients.
The suspected "enemy combatants" arraigned Tuesday will face a maximum sentence of life in prison, but the commission will have the power to sentence others to death.
The attorney for Salim Ahmed Hamdan, a 34-year old Yemeni driver for bin Laden, accused of war crimes, has already spoken out about his lack of contact with his client and the government’s failure to share information with him.
"I’ve never gone into a hearing with so little information," said Lt. Cmdr. Charlie Swift, a military defense attorney, in an interview with the al-Jazeera cable television network.
Several detainees who were recently released from Guantanamo have reported making false confessions during marathon interrogation sessions, some of which were reported to run as long as 15 hours.
