My favourite moments in the Senate Hearing on Guantánamo trials

The U.S. Senate Committee on Armed Services held a hearing on 07 July 2009 to determine the legal difficulties in continuing the military commissions held at Guantánamo Bay. I've listed some of the most alarming aspects here.

In case you missed it, President Obama has announced that military commissions will resume in Guantánamo. He has made five major changes to the Military Commissions Act 2006, namely that:

• statements obtained under coercion or humiliating circumstances cannot be used
• the use of hearsay in tribunals will be limited
• detainees have more choice when choosing defense lawyers
• detainees can legitimately choose not to testify
• the military commission judges are allowed to determine the jurisdiction of their own courts.

Quite a few issues pop up when reading the transcript of the hearing.  As it is 47 pages long, and this is a blog and not a school report, I'm just going to highlight some of my 'favourite' moments here.

Chairman Levin: 

"Three years ago when the committee considered similar legislation on military commissions, I urged that we apply two tests.  First, will we be able to live with the procedures that we establish if the tables are turned and our own troops are subjected to similar procedures?  Second, is the bill consistent with our American system of justice and will it stand up to scrutiny on judicial review?...the language that we have included in the National Defense Authorization Act for Fiscal Year 2010 meets both tests."

Throughout the hearing, multiple Senators state they truly believe they would not have a problem if American troops were subjected to military commissions in foreign countries. Ironically, I know that these Senators would be the first to kick up a fuss if the American troops were put on trials without any semblance of due process (ahem, Senator McCain). 

Many Senators argue that the 'terrorists' held at Guantánamo Bay are not soldiers, but 'war criminals' picked up on the battlefield. They are therefore not afforded the protection of the most basic legal rights. In fact, many of the detainees at Guantánamo Bay were not picked up on the battlefield at all, but handed over to the Americans for minor infractions or slight connections to others (e.g. attending the same mosque as an alleged terrorist).

The Senators have drawn parallels between the American troops and the detainees at Guantánamo Bay.  Yet if Senators would indeed accept American troops being subjected to the same military tribunals, they must also accept American soldiers being treated as 'war criminals'.

Next, Jeh C. Johnson, General Counsel for the Department of Defense stated:

"if military commissions were held in the continental United States I think that we have to carefully consider the possibility that some level of due process may apply that the courts have not determined applies now." 

It is worrying to think that the Senators of the United States and the Counsel for the Department of Defense are actually scared of giving due process to the detainees. 

David Kris, Attorney General for National Security Division at the Department of Justice did say:

"Obviously, there is some standard of due process that applies to a military commission.  Exactly what that standard is, as I say, is sometimes difficult to discern." 

Yet surely if it were American troops in front of a military commission, the Senators would argue that the due process standard ought to be quite a high one.  Or, at the very least, that the commission in question should have a very clear idea of what standard of due process is operating.

Perhaps the most disappointing realization was that the Guantánamo detainees have already been found guilty.  Not once does it cross any of the Senators' or experts' minds that there are innocent men being detained in GTMO.  Nor does it occur to them that for over 200 years, you have been innocent until proven guilty in the U.S. Senator Graham says:

"Some of [the detainees in GTMO] will be able to get out of jail because they've rehabilitated themselves and some of them may in fact die in jail...That's applying American values to this war." 

On the same note, General Altenburg testified that:

"It's desirable [to have the Guantánamo military tribunals]--as a practical matter--first of all, it's desirable because we can show the American people just how bad these people are, number one, and also to the international community we can show these people how bad they are." 

Wow- the American legal process at work. And there are so many more appalling moments in the transcript if you would like to read it. 

President Obama said that his administration was going to bring the "commissions in line with the rule of law".  Whilst they have undoubtedly been improved, the problem is that the commissions are simply incompatible with the rule of law.