Critics: War-Crimes Court Still Needs Fixing

By Carol Rosenberg, The Miami Herald

Mar. 27–GUANTANAMO BAY NAVY BASE, Cuba — Critics of the use of Military Commissions for war-on-terror captives here say an Australian prisoner’s decision to plead guilty does not absolve the U.S. government of the need to fix a court whose rules differ from both standard U.S. military or civilian justice.

Instead, even as military lawyers were meeting privately here to work out the terms of David Hicks’ agreement to plead guilty to supporting al Qaeda, they described his guilty plea as a “Get Out of Guantanamo Card” from a fatally flawed system.

‘Hicks’ guilty plea should not be seen as legitimizing in any way the utterly illegal system of off-shore penal colonies, abuse and trials that violate fundamental due process rights,” said Vince Warren, executive director of the New York Center for Constitutional Rights, which has filed suits on behalf of hundreds of captives here.

Hicks was the first captive to be charged and would have been the first tried at commissions, which were approved by Congress in September, even as the Pentagon is still promulgating rules. The chief prosecutor has predicted he might put on trial as many as 80 of the 385 men held here as “enemy combatants.”

Yet Hicks, 31, has been a bit of an anomaly here as one of the few remaining Westerners in the camp.

And, unlike any other captive, his government had a diplomatic deal with the Bush administration to let Hicks serve out any sentence based on a military commission conviction in his native land.

“It is likely he pled guilty to the charge of providing material support in order to serve his time in Australia and leave the black hole of Guantanamo,” Warren said.

Neither of the next two captives who could next be charged have similar deals.

One, Canadian Omar Khadr, had earlier challenged efforts to try him as a war criminal on grounds he was a “child soldier,” aged 15 at the time of his capture in a 2002 firefight in Afghanistan that killed U.S. Army Sgt. Christopher Speer, a Special Forces medic.

And the other, Osama bin Laden’s former Kandahar driver, Salim Hamdan of Yemen, has argued, like Hicks, that his activities did not constitute war crimes. Hamdan challenged the Bush administration’s first military commission system all way to the Supreme Court, which ruled it unconstitutional.

Bush administration advocates say trial before U.S. military officers using classified evidence, in some instances hearsay and coerced testimony, are national security necessities in an ongoing, global war on terror.

Opponents of the system say any trials should be conducted by the already established strict rules that govern U.S. military courts-martial or civilian U.S. district courts.

U.S. trials of war-on-terror captives can provide the United States a chance “to restore its moral authority and reputation as a leading proponent of the rule of law,” said Jennifer Daskal, an attorney with Human Rights Watch who is here as a Pentagon-approved observer of the Hicks proceedings.

Instead, she noted that Hicks decided to enter a guilty plea on Monday night, fewer than four hours after the Marine presiding at the case disqualified two of his three attorneys, both civilians, over differing interpretations of the Pentagon’s rules for defense attorneys who aren’t in the U.S. armed forces.

Daskal said Monday’s “antics” illustrated “the illegitimacy of a hastily crafted process without established precedent or established rules. It appears that Mr. Hicks was strong-armed into pleading guilty after two of his counsel were thrown off the case.”

Hicks and his advocates had rarely addressed the narrative casting him as kangaroo skinner turned soldier of fortune who converted to Islam. Right up to his plea, however, they argued that he was no war criminal, that there was no allegation that he had ever fired on U.S. troops and that his activities did not constitute a violation of the laws of war.

American Civil Liberties Union staff attorney Ben Wizner, also a Pentagon-approved observer, wrote in a blog from here to fellow ACLU attorneys:

‘Though not overtly coerced, Hicks’ guilty plea was the product of a coercive system. And this outcome will do little to reduce the perception that the United States has created a result-driven system that is incapable of providing fair trials free of controversy.”

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Copyright (c) 2007, The Miami Herald

Distributed by McClatchy-Tribune Business News.

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