[Deathpenalty] death penalty news-----USA

[Rick Halperin]

July 18



USA:

USA----Double standards and second-class justice----Federal judge clears
way for first military commission trial

18 July 2008 AI Index: AMR 51/082/2008

As assurance against ancient evils, our country, in order to preserve 'the
blessings of liberty', wrote into its basic law the requirement, among
others, that the forfeiture of the lives, liberties or property of people
accused of crime can only follow if procedural safeguards of due process
have been obeyed. US Supreme Court, 1940

The USA considers itself to be a country committed to due process for
those suspected of criminal conduct. It even preaches what it says it
practices. In its annual assessment of human rights around the world, for
example, the USA condemns unfair trials occurring at the hands of other
governments. Cuba, for one, routinely comes in for criticism. In the
latest US report, the Cuban authorities were brought to task for trials
which the USA said "failed to observe due process rights". Restrictions on
the right to a defence, a lack of transparency in proceedings involving
state security, and the use of confessions "obtained under duress and
without legal advice", were among the issues that drew the critical words
of the US State Department.

"It is a good divine", wrote William Shakespeare, "that follows his own
instructions". The USA is not following what it instructs others, however.
In its offshore prison camp in Guantnamo Bay, it is about to open a new
chapter in its unlawful treatment of detainees in the "war on terror". On
17 July 2008, US District Court Judge James Robertson cleared the way for
the first US trial by military commission for more than half a century,
when he refused to stop the trial of Salim Ahmed Hamdan. This Yemeni
national - now in his seventh year in Guantnamo - had sought to challenge
the constitutionality of the commission system following last month's
Boumediene v. Bush ruling by the US Supreme Court that the Guantnamo
detainees have the constitutional right to habeas corpus in the US federal
courts. However, Judge Robertson ruled that Hamdan's "claims of
unlawfulness are all claims that should first be decided by the military
commission and then raised on appeal". Salim Hamdan's military commission
trial is scheduled to begin next week, under procedures that if concocted
the other side of the 17-mile fence that separates the US naval base from
the rest of Cuba, would surely lead to vigorous protests on the part of
the USA.

At a pre-trial hearing in front of a US military judge in late April 2008,
Salim Hamdan put it thus, according to Amnesty International's observer at
the proceedings:

"There is no such thing as justice here. The law is clear. International
law is clear. But this is not justice: I see a piece of paper - I say it's
white, you say it's black. I say black, you say it's white. I am not
speaking to you, Judge. I am speaking to the American Government. These
words are not directed at you America tells the world about freedom and
justice. Hundreds of detainees do not see justice. Give me a just court
Give me my human rights."

The US government says it aims to "hold governments accountable to their
obligations under universal human rights norms and international human
rights instruments." Judge Robertson yesterday missed an opportunity to
hold the US government accountable for a trial system that does not meet
international fair trial standards and should be called to a halt.

This is the US government's second attempt since 2001 to try foreign
nationals it has branded as "unlawful enemy combatants" in front of
military commissions. The first system - for four years promoted by the
administration as guaranteeing full and fair trials - ended in June 2006
when the US Supreme Court ruled that the "structure and procedures" of the
commissions violated US and international law. The response of the
political branches was not to turn to the existing US courts, but to
continue the experiment and legislate to replace the condemned commissions
with a revised system that offered little improvement on its predecessor.

These are second-class trials to which the US government would not subject
its own nationals. The very law under which they are convened is
incompatible with the international prohibition on discrimination. "I want
to emphasize that the Military Commissions Act does not apply to American
citizens", said the US Attorney General the day after the MCA passed into
law in October 2006; "Thus, if I or any other American citizen were
detained, we would have access to the full panoply of rights that we
enjoyed before the law". Displaying the disregard for the presumption of
innocence that has become a hallmark of the US administration's public
commentary on the "war on terror" detainees, the country's then chief law
enforcement officer added that under the MCA,"every terrorist will receive
a full and fair trial".

According to such commentary, the "unlawful enemy combatant" label is
synonymous with "terrorist", and any foreign national so labeled does not
deserve the same trial standards as "lawful combatants", ordinary criminal
offenders, or US citizens. As Vice President Dick Cheney has said: "They
don't deserve the same guarantees and safeguards that would be used for an
American citizen going through the normal judicial process"; "The fact of
the matter is the president has said specifically [military commission
trials] will apply to terrorists." Seeking congressional approval for the
MCA, President George W. Bush said: "today, I'm sending Congress
legislation to specifically authorize the creation of military commissions
to try terrorists for war crimes."

A chronology of a military commission experiment

o 13 November 2001 - President Bush issues Military Order authorizing
trials by military commission for foreign nationals

o 24 November 2001 - Salim Hamdan captured by Northern Alliance in
Afghanistan, and sold to US forces. He is held in Bagram and Kandahar
airbases in Afghanistan

o 7 February 2002 - President Bush issues memorandum asserting that no
"war on terror" detainee would qualify as a prisoner of war and Article 3
common to the four Geneva Conventions would not apply

o June 2002 - Salim Hamdan transferred to Guantnamo

o July 2003 - Made eligible for trial under Military Order

o 14 July 2004 - Hamdan charged with "conspiracy". The Pentagon describes
the military commissions under the Military Order as a "tool of justice",
guaranteeing "full and fair trials" for the accused.

o 8 November 2004 - District Court rules in Hamdan v. Rumsfeld that
military commissions are unlawful.

o 15 July 2005 - US Court of Appeals for District of Columbia (DC) Circuit
overturns District Court's Hamdan ruling.

o 30 December 2005 - Detainee Treatment Act (DTA) becomes law. DC Circuit
Court of Appeals given exclusive jurisdiction to "determine the validity
of any final decision" handed down by military commission

o 29 June 2006 - US Supreme Court reverses Court of Appeals in Hamdan v.
Rumsfeld, ruling that the military commissions violate US military and
international law, and Common Article 3 applies

o 17 October 2006 - Military Commissions Act (MCA) becomes law

o 13 December 2006 - District Court dismisses Hamdan's habeas corpus
petition on the grounds that 7 of the MCA has stripped the federal courts
of jurisdiction to consider such appeals

o 2 February 2007 - Charges under MCA of "conspiracy" and "providing
material support for terrorism" sworn against Hamdan. The charges allege
that he acted as Osama bin Laden's personal driver and bodyguard, that he
transported weapons and other supplies for al-Qa'ida members and
associates, and that he received weapons training. The charges are
non-capital.

o 1 May 2007 - Charges referred on for trial by military commission

o 12 June 2008 - Supreme Court rules in Boumediene v. Bush that 7 of the
MCA is unconstitutional and that the Guantnamo detainees have the
constitutional right to habeas corpus

o 17 July 2008 - District Court refuses to stop Salim Hamdan's trial on
the base of the Boumediene ruling, saying that Hamdan can only challenge
the constitutionality of the system after his trial

o 21 July 2008 - Salim Hamdan's trial due to begin

Yet whether someone is guilty of "terrorism" is a matter to be decided at
a fair trial, applying international standards. Here, the US government
effectively labels the defendant as guilty, makes that label a
prerequisite for military commission jurisdiction, and subjects the
individual to trial before a tribunal that is not structurally independent
from the branch of government applying the label to the detainee in the
first place. The presumption of "guilt" can continue even after an
acquittal. Even if Salim Hamdan were to be acquitted by military
commission, he could be returned to detention if the government so
decided. Clearly, in such a case, the international legal right to trial
within a reasonable time - already a fiction in Guantnamo - would have
little meaning to the individual in question.

One of the accusations that the USA levels against trials in Cuba - the
admission into evidence of coerced statements - was a part of the US
military commission system under the Military Order, and is part of the
revised system under the MCA. In violation of international law, the
military commissions can admit information extracted under cruel, inhuman
or degrading treatment. The MCA differentiates between statements obtained
before 30 December 2005, when the USA's Detainee Treatment Act (DTA) came
into force (prohibiting cruel, inhuman or degrading treatment, as defined
in US rather than international law), and statements obtained after that
date. Under the MCA, in both pre- and post-DTA cases, statements "in which
the degree of coercion is disputed" may only be admitted if the military
judge finds that the statement is "reliable" and possesses "sufficient
probative value" and if "the interests of justice would best be served by
admission of the statement into evidence". In the case of statements
obtained after 30 December 2005, the military judge must also find that
the interrogation methods used to obtain the statement did not amount to
cruel, inhuman or degrading treatment as defined and prohibited under the
DTA. In the first 20 months of his detention alone - more than three years
before the DTA was enacted - Salim Hamdan was subjected to at least 30
interrogations, some of them reportedly lasting for days, all of them
without access to a lawyer.

As the Supreme Court ruled more than half a century ago, the rationale for
excluding coerced confessions is not just their unreliability. They should
be inadmissible even if "statements contained in them may be independently
established as true", because of the fundamental offence the coercive
treatment of detainees causes to the notion of due process and its
corrosive effect on the rule of law. The fact that the military
commissions can admit such statements into evidence illustrates the
distance between their procedures and commonly held notions of due
process.

Salim Hamdan's right not to be subjected to ill-treatment has been
systematically violated by the cruel and coercive conditions in which he
has been held, including since being made eligible for trial by military
commission on 3 July 2003. From December 2003 to October 2004, he was put
into solitary confinement in Camp Echo in a windowless cell that lacked
natural light and fresh air. In a meeting in October 2003 between the
International Committee of the Red Cross (ICRC) and the Guantnamo
authorities, according to a leaked military document, the ICRC protested
about the "excessive isolation" of detainees, and about how interrogators
would "attempt to control the detainees through the use of isolation". The
ICRC expressed its particular "shock" at Camp Echo, a facility it
considered had "extremely harsh" conditions.

Again, if such use of isolation were to happen at the hands of other
governments, the US authorities would likely condemn it. Every year since
the USA began operating its Guantnamo detention facility, for example, the
State Department's entries on Cuba in its annual human rights reports have
- under the heading torture and other cruel, inhuman or degrading
treatment or punishment - criticized the Cuban authorities for subjecting
prisoners to prolonged isolation in punishment cells.

An April 2003 Pentagon report on interrogations, originally classified as
secret, noted that "the stated purpose of detainee interrogations is to
obtain information of intelligence value", but added that "information
obtained as a result of interrogations may later be used in criminal
prosecutions". It asserted, for example, that isolation had "high" utility
value in contributing to intelligence collection, but noted that it could
affect admissibility at trial of statements obtained under this technique.
However, it added that such concern would be a "lesser issue for military
commissions" than it would in the federal courts or courts-martial. In
other words, military commissions were tailor-made for the coercion that
was inherent to the detention regime the USA had constructed for "enemy
combatants".

Salim Hamdan's lawyers have recently said that they have received
information suggesting that for 50 days from 11 June 2003, Hamdan may have
been put into a program of sleep disruption and deprivation known as
"Operation Sandman". This program involved sleep interruptions and
frequent cell relocations, and was apparently primarily targeted at Saudi
Arabian detainees to keep them "mentally off balance, to isolate them
linguistically or culturally, and to induce them to cooperate", according
to a recent report by the US Justice Department's Inspector General. In
the entries on Iran, Jordan, Libya, Saudi Arabia, Tunisia, Pakistan and
Turkey in its human rights reports covering 2003, the US State Department
reported that sleep deprivation was among the "torture" techniques alleged
in those countries.

Salim Hamdan's then US military lawyer (from late 2003) stated that the
government's plan was to begin the military commission process under the
Military Order with those detainees who would plead guilty. The lawyer
said that he was instructed that he could only negotiate a guilty plea,
which the authorities apparently believed Hamdan was ready to make. This
lawyer, who found that Hamdan did not want to negotiate such a plea, later
told Senators that he believed the government was engaged in a "clear
attempt to coerce Mr Hamdan into pleading guilty".

Dr Daryl Matthews, a forensic psychiatrist invited to Guantnamo by the
Pentagon, stated in March 2004 that Salim Hamdan had "described his moods
during this period of solitary confinement as deteriorating, and as
encompassing frustration, rage (although he has not been violent),
loneliness, despair, depression, anxiety, and emotional outbursts. He
asserted that he has considered confessing falsely to ameliorate his
situation." In a declaration filed in federal court, Dr Matthews said that
"Mr Hamdan's current conditions of confinement place him at significant
risk for future psychiatric deterioration, possibly including the
development of irreversible psychiatric symptoms. Additionally the
conditions of his confinement make Mr Hamdan particularly susceptible to
mental coercion and false confession".

In October 2004, Judge Robertson in the District Court in Washington, DC,
found that the military commission system was unlawful and additionally
ordered that Salim Hamdan be moved out of isolation. Hamdan was
subsequently moved into the medium security Camp 4, where inmates have
some social contact, and access to natural air and light. In December
2006, however, Judge Robertson dismissed Hamdan's habeas corpus petition
under the newly enacted MCA, and the detainee was moved out of Camp 4 and
into the harsh conditions of Camp 6. There he was held in isolation for 23
hours a day in a cell with no natural air or light. Salim Hamdan's mental
health reportedly deteriorated once again. Despite this, he was moved a
year later, not to Camp 4, but to Camp 5, where the conditions are similar
to those of Camp 6. In February 2008, a psychiatrist reported, after 70
hours of meetings with Salim Hamdan, that she had concluded that he was
suffering from post-traumatic stress disorder and major depression, and
that in her opinion he was "unable to materially assist in his own
defense".

It is clear that Salim Hamdan's trial - or any of the other military
commission trials looming at Guantnamo - cannot be divorced from the
backdrop against which such proceedings are occurring. This backdrop is
one of practices pursued in the absence of independent judicial oversight
that have systematically violated international law. At any such trials,
the defendants will be individuals who have been subjected to years of
indefinite detention, whose right to the presumption of innocence has been
systematically undermined by a pattern of official commentary on their
presumed guilt. Among the defendants already charged are victims of
enforced disappearance, secret detention, secret transfer, prolonged
incommunicado detention, torture and other cruel, inhuman or degrading
treatment. Their treatment has not only been unlawful, it has been highly
and deliberately coercive in terms of the interrogation methods and
detention conditions employed against them. This heightens the need for
any trials to take place before courts structurally independent of the
executive and legislative branches which have authorized or condoned human
rights violations. Instead, trials are looming before military commissions
lacking such independence and constructed to tolerate government abuses
and to admit information obtained under such abusive conduct.

Amnesty International considers that justice will neither be done nor be
seen to be done in trials before these military commissions. Despite
yesterday's ruling by Judge Robertson, the organization will continue to
campaign for the USA to bring anyone held at Guantnamo against whom it has
evidence of criminal wrongdoing to full and fair trials in the federal
civilian courts or release them. The military commissions should be
abandoned and the Guantnamo detention facility closed down. See also: USA:
Justice delayed and justice denied? Trials under the Military Commissions
Act, March 2007, http://www.amnesty.org/en/library/info/AMR51/044/2007/en.

(source: Amnesty International)