February 13, 2008

The Case Is Already Lost

As his presidency enters its final year, it appears that George W. Bush is searching for ways to keep himself relevant, and to shape his "legacy" into something at least remotely more positive for his Republican followers than the hash of disastrous war, corruption, profligacy and stupidity for which he will justly be recalled. Usually, presidents enjoy at least a small bump in the polls after they give a State of the Union address, but it is a measure of the country's disdain for his continued presence in the White House that Mr. Bush's numbers actually dropped after he spoke to Congress in the closing days of January. Perhaps then, it should be unsurprising that he has gone back to what once served him so well in shaping public opinion through fear mongering, propagandizing and a particularly amoral and arrogant brand of politics that will forever be associated with his regime: making what he believes will be construed as bold moves in the War on Terror ®.

As with so many of the Bush Administration's initiatives, however, the decision to pursue the death penalty against six prisoners currently interned at Guantanamo Bay flies in the face of both logic and morality. To whit, on February 5th, Central Intelligence Agency Director Michael Hayden admitted that the C.I.A. had tortured several of the prisoners held at the camp, including some of the men whom prosecutors are now seeking to execute. Two days later came revelations not only that there exists within that facility an area for "high value prisoners" called Camp 7 that is so secret it's location within the base cannot be revealed, but that there is strong evidence that prosecutors were suppressing evidence that could free at least one captive.

With all of these serious questions about the legitimacy of the system in which the prisoners are enmeshed, it is a bold move indeed to proceed with a capital case, especially when one considers that even the president would supposedly prefer to close Guantanamo Bay. Of course, Mr. Bush prides himself on resolute action in the face of contravening facts, and this decision is eminently reasonable if the expressed desire to shutter Gitmo is nothing more than lip service to widely-held standards of human rights to which he himself does not subscribe. As might be expected, this looks like another trademark Bush debacle in the making; from a New York Times article on the decision to pursue the death penalty:
The military commission system has been troubled almost from the start, when it was set up in an order by President Bush in November 2001. It has been beset by legal challenges and practical difficulties, including a 2006 decision by the Supreme Court striking down the administration’s first system at Guantanamo. Although officials have spoken of charging 80 or more detainees with war crimes, so far only one case has been completed, and that was through a plea bargain.

Eric M. Freedman, a Hofstra University law professor who has been a consultant to detainees’ lawyers, said a decision to seek the death penalty would magnify the attention on each of the many steps in a capital case. Intense scrutiny, he said, “would be drawn to the proceedings both legally and politically from around the world.”
Tom Fleener, an Army Reserve major who was until recently a military defense lawyer at Guantánamo, said that bringing death penalty cases in the military commission system would bog down the untested system. He noted that many legal questions remain unanswered at Guantanamo, including how much of the trials will be conducted in closed, secret proceedings; how the military judges will handle evidence obtained by interrogators’ coercive tactics; and whether the judges will require experienced death-penalty lawyers to take part in such cases.

“Neither the system is ready, nor are the defense attorneys ready to do a death penalty case in Guantánamo Bay, Cuba,” Major Fleener said.
In any event, vigorous trial battles and appeals would probably mean that no execution would be imminent. “It certainly seems impossible to get this done by the end of the Bush administration.”
Casting the proceedings into deeper doubt was an admission (link goes to audio file) by the professionally suspect Air Force General Thomas Hartmann on Tuesday's edition of NPR's Diane Rehm Show that the accused - after six years in captivity - had only been granted access to counsel 24 hours earlier. This in turn was further compounded by a report that the F.B.I. had sent in a "clean team" who attempted to re-gather the evidence obtained from the prisoners under torture using non-coercive methods, apparently in an effort to make that evidence admissible at trial. While such tactics are apparently not uncommon in criminal proceedings - although not in cases involving torture - these are clearly different circumstances. As former Navy Judge Advocate General (J.A.G.) John Hutson says:
"There's something in American jurisprudence called 'fruit of the poisonous tree': You can clean up the tree a little but it's hard to do," said John D. Hutson, a retired Navy rear admiral and former judge advocate general. "Once you torture someone, it is hard to un-torture them. The general public is going to be concerned about the validity of the testimony."
So, here's what we have: Six men have been held extra-legally in a super-secret location for the past 6 years. During that time, several of them were tortured, and they were denied access to counsel or the ability to challenge their imprisonment in either the American courts or using any system of jurisprudence recognized under international law. Their chance for a trial, when it finally arrives, is rushed forward in the last year of a lame duck presidency, and reeks of political motivation. The case will be made with some form of "cleansed" evidence that most reasonable people will suspect is tainted by the defendants' torture. To top it all off, the U.S. government, in recommending capital punishment, is pursuing a goal that is not only abhorred by the rest of the civilized world, but that will effectively make a martyr of anyone executed. As Anthony Romero, Executive Director of the American Civil Liberties Union (A.C.L.U.) correctly notes:
“Those accused of planning the September 11 attacks should be brought to justice, but a credible trial is impossible under a flawed military commissions system lacking in basic due process protections and allowing for the admission of coerced testimony, possibly obtained through practices condemned throughout the world as torture. Questions of fairness and due process are always at play in death penalty cases, and this will be doubly true in any capital case involving high value detainees who have been tortured and held for years without access to counsel. The American legal system will be as much on trial in these cases as the actual detainees.”
To be sure, this trainwreck was inevitable from the moment the Administration painted the United States into a human rights corner by constructing an offshore prison camp for the sole purpose of keeping the people held there in legal limbo. At this point, there are no good options, and we should be perfectly clear about what is going to happen: there is no outcome under which any of the six men tried will be released. None. It will not happen, because even if - by some extraordinary circumstance - they are not convicted, the United States cannot set them free. They will either be held pending further "investigation" and charges, denied release because no other country of which we approve will take them in, or die mysteriously either in custody or "escaping." This is the very definition of a show trial.

Then again, this tribunal is not really about justice; it is purely for the consumption of the hardcore G.O.P. base. Unfortunately, in the eyes of the world, it is the justice system of the United States that will be on trial as much - if not moreso - than the men alleged to have masterminded the 9/11 attacks. Even if, as many expect, the proceedings last beyond the end of the current president's tenure in office, his successor will be hard pressed to significantly change course. As with so many other things George W. Bush has touched, whoever next occupies the White House must deal with a tragic and tangled disaster that can only painfully be addressed. Sadly, like the outcome for the case against the six Guantanamo Bay prisoners, the world's judgment on America and the manner in which we practice the ideals we preach is very likely predetermined; it is a case that has already been lost.

For a view into one of the earliest cases of frontier injustice under Bush policies after September 11th, watch the video below. It's a trailer for the new movie Taxi to the Dark Side that details what happened to a taxi driver who fell into American hands and was murdered in captivity.