Advocates for hundreds of detainees in George W. Bush’s “war on terror,” many held for years without criminal charges, are escalating their demands for fair trials or release of the prisoners and for closing Guantanamo and secret CIA prisons elsewhere.
Many are citing a newly released Justice Department memo, dated March 14, 2003, that upheld President Bush’s authority to order torture of “enemy combatants.” The memo implied that confessions obtained through torture would be admissible in the detainees’ trials. This would include military tribunals scheduled for this summer of the “Guantanamo Six,” whom prosecutors describe as “high value” detainees implicated in the Sept. 11, 2001, terrorist attacks.
Legal experts say the 2003 memo, disclosed this April 1, violates Fifth Amendment protections against self-incrimination, the Fourth Amendment protection against “unreasonable search and seizure” and the Eighth Amendment protection against “cruel and unusual punishment.”
The memo claimed the president has the sole right to regulate interrogations of “enemy combatants” and, amazingly, declared that, “any effort by Congress to regulate the interrogations of enemy combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.”
The memo, written by then-Deputy Assistant Attorney General John Yoo, also asserted that “customary international law is not federal law and that the President is free to override it at his discretion.”
Marjorie Cohn, president of the National Lawyers Guild, said Yoo defined torture so narrowly that the “interrogator must nearly kill the person to constitute torture.” She told the World via email, “Yoo’s definition violates the definition of the Convention against Torture, a treaty the U.S. has ratified and thus part of U.S. law.”
This memo and another that Yoo co-authored in August 2002 “provided the basis for the administration’s torture of detainees,” Cohn said. She pointed out that the memos exempt the president and his minions from the federal “maiming statute,” which makes it a crime to “cut, bite, or slit the nose, ear, or lip … cut out or disable the tongue, a limb … throwing or pouring upon another person scalding water, corrosive acid, or caustic substance.”
Jennifer Daskal, senior counter-terrorism counsel at Human Rights Watch, said the detainees’ cases should be moved to the federal courts. “The Bush administration should end this failed experiment with military justice,” she said in an April 10 press release. “Even the commission’s former chief prosecutor, Col. Morris Davis, has now said that full and open trials are not possible under the current system.”
Daskal told the World, “The military system is so fundamentally unfair it is essential to transfer these cases to the federal courts. It is essential that these trials have credibility and that will never happen in these military tribunals.”
Human Rights Watch has studied the 81-page 2003 memo, she added. “It appears to be a legal justification for the most abusive practices possible” in the interrogation of detainees.
Frida Berrigan, executive director of Witness Against Torture, said release of the memo “is exposing the crimes of the Bush administration in real time. It is not just the abuses at Guantanamo. It is the lies that got us into the Iraq war. They cannot keep the lid on all this. The support for closing Guantanamo is growing every day.”
The trials of the six Guantanamo detainees, she continued, “will be moving forward in the lead-up to the November elections. It will be important to have all the candidates on the record.” Republican John McCain is running as a “get tough on terrorism” Bush loyalist. “Both Clinton and Obama … want to see Guantanamo shut down,” Berrigan said, calling it a “huge” first step to ending torture and abuse.
The American Civil Liberties Union and the National Association of Criminal Defense Lawyers on April 4 announced an $8.5 million project to provide a team of 11 defense attorneys to defend the “Guantanamo Six” in the upcoming trial. Former Attorney General Janet Reno is a member of the team. ACLU Executive Director Anthony Romero accused the Bush administration of seeking to guarantee conviction of the defendants by allowing hearsay evidence and confessions obtained through coercion. The ACLU is focusing on defense of Khalid Sheikh Mohammed, identified by the administration as the “mastermind” of the Sept. 11 attacks. “Whether or not they are able to convict Mohammed under these rules may well determine the fate of almost 300 other men who are detained at Guantanamo,” Romero said. The CIA has admitted that it subjected Mohammed to waterboarding, or simulated drowning, in forcing a confession from him before his transfer to Guantanamo. Many experts say confessions obtained under torture are highly unreliable.
Thus far, Guantanamo trials have been a fiasco. The Supreme Court ruled in Hamdan v. Rumsfeld that a tribunal there violated the Uniform Code of Military Justice and the Geneva Conventions. Bush signed the Military Commissions Act of 2006 to try to get around that ruling. But only three cases have been taken up by the new commissions. Not one defendant has been found guilty of terrorism. David Hicks admitted to a misdemeanor and went home to Australia. Outrage over his treatment led to the fall of the Conservative government there.