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| Make no mistake, Gitmo is no gulag | ||
| 2007-07-02 | ||
IT is disappointing that so many people embrace a contrived image of Guantanamo Bay. Reality for Guantanamo Bay is the daily professionalism of its staff, the humanity of its detention centres and the fair and transparent nature of the military commissions charged with trying alleged war criminals. It is a reality that has been all but ignored or forgotten. Today, most of the detainees are housed in new buildings modelled on US civilian prisons in Indiana and Michigan. Detainees receive three culturally appropriate meals a day. Each Muslim detainee has a copy of the Koran. Guards maintain respectful silence during Islam's five daily prayer periods and medical care is provided by the same practitioners who treat American service members. Detainees are offered at least two hours of outdoor recreation each day, double that allowed to inmates, including convicted terrorists, at the supermax federal penitentiary in the US state of Colorado. Standards at Guantanamo rival or exceed those at similar institutions in the US and abroad. After an inspection by the Organisation for Security and Co-operation in Europe in March last year, a Belgian police official said: "At the level of detention facilities, it is a model prison, where people are better treated than in Belgian prisons."
Some imply that if a defendant does not get a trial that ends like O.J. Simpson's, then military commissions are flawed. They are mistaken. The US constitution does not extend to alien unlawful enemy combatants. They are entitled to protections under common article three of the Geneva Conventions, which ensures they are afforded all the judicial guarantees that are recognised as indispensable by civilised people. One myth is that the accused can be excluded from his trial and convicted on secret evidence. The administrative boards that determine if a detainee is an enemy combatant and whether he is a continuing threat may consider classified information in closed hearings outside the presence of the detainee. But military commissions may not. The act states: "The accused shall be permitted ... to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing." Unless the accused chooses to skip his trial or is removed for disruptive behaviour, he has the right to be present and to confront the evidence. 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 defence 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. The Military Commissions Act of 2006 says hearsay is admissible unless it is challenged. The party raising the challenge must persuade the military judge that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the commission, among other reasons. While this standard permits admission of some evidence that would not be admissible in federal courts, the rights afforded to Americans are not the benchmark for assessing rights afforded to enemy combatants in military tribunals. There is no ban on hearsay among the indispensable rights listed in the Geneva Conventions. Nor is there a ban on hearsay for the UN-sanctioned war crimes tribunals, including the 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 limit hearsay evidence. Simply stated, a ban on hearsay is not an internationally recognised judicial guarantee. Guantanamo 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 Guantanamo Bay and military commissions and demand alternatives. The facts show the present alternative is worth keeping. Morris Davis is the chief prosecutor in the US Defence Department's Office of Military Commissions. | ||
| Posted by:Steve White |
| #1 Once the combatants are on ice somewhere stateside, I'm sure the Hatians will be pleased with the upgraded lodging. |
| Posted by: Super Hose 2007-07-02 22:52 |