Tuesday, July 24, 2007

Guantanamo Proceedings Corrode The Rule Of Law

Lex Lasry, the neutral observer from the Law Council of Australia has released a scathing report on the case of David Hicks. Hicks is the first detainee imprisoned in Guantanamo Bay to be adjudicated guilty of the charges against him and is now serving a jail term in Australia. He will be released in December of this year.

The report details an Alice in Wonderland quality to the process, in which the punishment is first determined, and then the trial of the accused is allowed to proceed to it's inevitable finding of guilt. Hicks' case seems to have been settled in such a way as to give political and legal cover to the Australian and American governments. The Australian Law Council describes the proceedings as ad hoc, and condemn the entire affair as corrosive to the rule of law.

Just who is it that is on the side of Democracy and the rule of law in this war? Remind me again of how we Americans stand for justice and freedom. It's hard to see that when our Government is guilty of torturing detainees (and by God it IS torture no matter how much they try to redefine that word) and making up the rules as we see fit. But... I digress.

Reading through the report itself, (you may link there from here, by downloading a pdf file) is actually quite interesting. I often try to burrow through just this type of report and wind up going cross eyed after a few paragraphs of legalese, but this report is different. Take for example the riposte delivered to President Bush at section 3.29:
The MCA was signed into law by President George W Bush on 17 October 2006. During the course of the signing ceremony, he said:
"The bill I'm about to sign also provides a way to deliver justice to the
terrorists we have captured..."


3.30. It will be noted that the President, in his opening words, purported to resolve an issue against the detainees which Military Commission trials might have been more appropriate to deal with – has it been proved beyond reasonable doubt that in the particular case the accused is a terrorist? Apparently the President was already satisfied about that and so, in a few words, demonstrated the lack of independence which infects this process.
Well played Mr. Lasry. However pointing out failures in the logic employed by President Bush is mere child's play compared to deconstructing the apparatus used to railroad Hicks into a guilty plea.

Lasry deconstructs the case against Hicks with the same no nonsense dispatch as he used to destroy the President's credibility on the issue. On the charge of providing material support to terrorists, Lasry demonstrates that this was not a "crime" under Australian, or even U.S. law at the time that Hicks is alleged to have done it. In fact that charge was not even applicable to Hicks until Congress passed the MCA act in 2006. Lasry notes several well respected lawyers and experts in the field of international law who agree that this particular charge against Hicks was bogus. In effect America can not retroactively criminalize behavior which was actually understood to be legal when the behavior was engaged in. That makes perfect sense from my perspective.

Lasry also notes the opinion of Chief Prosecutor Morris Davis in justifying applying a law retroactively:
Colonel Morris 'Moe' Davis said David Hicks’s defence team was claiming that the offence he faces – material support of terrorism – was being applied against him retrospectively.
He said this defence was argued to prevent people being punished for something that they couldn't have known was wrong.

But he said Hicks's father had told him “It’s wrong to take up arms against our own”.

Colonel Davis said it was going to be hard to argue that “Gee, I had no idea that what I was doing was wrong when I reported in to al-Qaeda and got a rifle and hand grenades and went out to fight against my countrymen and their allies”.

He said he was not going to get into the specifics of the evidence, but it’s certainly “in the public domain the comments (by Terry Hicks) made in December 2001 when he said: ‘In my eyes, David Hicks is a terrorist'."

Frankly I am embarrassed that this Davis character can express this kind of opinion and be in any way associated with a supposedly fair process aimed at finding the guilt or innocence of people accused of being terrorists. As Lasry notes, Hicks' father must be surprised at his sudden elevation to lawmaker. What Lasry doesn't bother to mention, because on a basic level this point has no legal bearing but is something any human being understands instinctively, is that parents finding fault with their children is an ancient aspect of humanity. My mother has been mortified on several occasions by choices I have made, yet the thought that I would serve prison time because she thought I was making bad judgements is just absurd. Just think of the overflowing prisons America and Australia would have if parental approval were suddenly a new standard by which legality were decided.

Lasry next delves into the absurdity of the proceedings of the military tribunal in particular. Hicks entered the proceedings with three lawyers, which the judge quickly whittled down to one. One lawyer was detailed to Hicks' defense by the military, but the judge found she did not have standing because she was a civilian. That lawyer, Ms. Rebecca Snyder, pointed out that the MCA and various other sections of military law specified that assistant counsel did not need to be enlisted, but the judge refused to give her standing.

Next comes the truly weird handling of the standing of Hicks' civilian lawyer. The defendant is allowed to have civilian representation by the terms of the MCA, but one condition for standing is that the lawyer agree to comply with all regulations regarding the commission. At the time of the proceeding there were no regulations on these commissions, as the Secretary of Defense was in the process of drawing them up. As such Joshua Dratel, Mr. Hicks civilian lawyer was willing to agree to conform to regulations as they currently stood, but was not willing to sign an agreement on regulations not yet in existence. The judge was only willing to give him standing if Dratel agreed to all the rules, even those not yet known. Of course Dratel could not accept this, (who in their sound mind would?!) so he was booted from the table as well. Upon losing Dratel as counsel Hicks expressed himself about what seemed a supremely frustrating and surreal process: “I am shocked – I just lost another lawyer”

Lasry notes in covering this that the judge was usurping power expressly granted the Secretary of Defense, without any recourse for delegation of those powers by the MCA. The judge is not allowed to independently determine the rules governing the commissions. It seems to me that if a civilian lawyer had made himself a party to such an activity that he may be liable for contempt charges by being a party to an illegal proceeding before the court. That's just my take on it though... somehow I suspect everything would have worked out fine for Dratel if he had just knuckled under and accepted the judges illegal solution.

The judge then noted that the apparel Hicks was wearing was prejudicial to his case. Never mind that Hicks was escorted to the hearing and bracketed by two guards through out the proceeding... the fact that his hair was long and he was not wearing suit and tie was a detriment to the possible fairness of the proceeding. All of the past prejudicial declarations and actions by everybody involved, from the President whose very statement as he signed the law was a finding of guilt for those whom the law applied to, down the line to the Secretary of Defense and so on were not addressed as affecting the fairness of the trial. That Hicks' attire should cause such a concern over fairness was laughable according the Lasry.

The proceedings then launched into the fitness of the judge himself to oversee the proceedings and so on and so forth. But here comes the kicker. The entire procedure was a contrivance. By the time the commission had started the plea deal had already been arranged. It was literally a show trial. How disgusting is it to know that the very first proceedings under the MCA were a show trial, in the finest style of dictatorial regimes famous the world over and through out history.

This has turned into a monster post, and I don't like pounding out books for any people who may take an interest in my rantings to have to wade through. I would just wrap this up with a glowing recommendation for the report by the Law Council and Mr. Lasry on the MCA proceedings at Guantanamo Bay. After reading the report one is left with the sad conclusion that the Bush administration with a complicit Congress has set up an inherently unfair process by which those accused are railroaded. Even pretending that there is a legal veneer of legitimacy to the process is corrosive to the basic meaning of the rule of law.

Please read the report and draw your own conclusions.

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