Of Course He’s Guilty!

March 27, 2007 at 1:14 pm | Posted in American politics, Bush Administration, Gitmo, Torture | 4 Comments

Bush says so, so there.

However, in the real world, the first “conviction” in Guantanamo happens to be Australian David Hicks. The ACLU writes about the very odd occurrences in the military tribunal:

The judge asked Hicks whether he was satisfied with his attorneys. He said he was, except that he hoped to add additional lawyers and paralegals so as to achieve “equality” with the prosecution. But precisely the opposite occurred.

First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks’s lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing — but the result was the first empty chair at Hicks’s table.

Next, and far more troubling, the judge stated that Hicks’s civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission’s regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it.

Instead, the judge had created his own version of the agreement – thereby, in Dratel’s words, “usurping the authority of the Secretary of Defense.” Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. “I cannot sign a document that provides a blank check on my ethical obligations as a lawyer,” Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen.

The judge was unpersuaded. “I find no merit in the claim that this is beyond my authority,” he said. “That’s sometimes what courts do, they find a way to move forward.” Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair.

“I’m shocked,” said Hicks, “because I’ve just lost another lawyer. Now I’m left with poor Mr. Mori.” (Major Dan Mori is Hicks’s very able military defense counsel.)

This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks’s clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual – which he helpfully defined – would be more appropriate. This practice was “designed to protect the presumption of innocence,” the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him.

Never mind that the President and former Secretary of Defense had already declared Hicks a guilty terrorist; that the Supreme Court had already once intervened to halt illegal proceedings under which he faced trial; that the events of the morning had left him facing serious charges with only a fraction of his legal team. The true threat to a fair proceeding had been identified, and Hicks was wearing it.

It is against this backdrop that Hicks’s decision to enter a plea of guilty must be understood.

See, in the minds of the Bush administration, the judges, the guards, and everybody else down at Guantanamo, all the men down there are already guilty. They are not innocent. How many examples do I need to show of Rumsfeld, Cheney, and Bush claiming this very point? Of course he’s guilty. Just as surely as Grigory Zinoviev, Lev Kamenev, and the rest accused, tortured and tried in the Moscow Show Trials were.

I will be highly surprised if the Military Tribunal down in Gitmo actually finds a defendant—any defendant— NOT guilty. Truly, I will be surprised.

a reader on Andrew Sullivan’s blog states the following:

You say that Hicks “knowingly aided a terrorist organization”. How do you know this? How do any of us know what any of the Gitmo detainees are, or are not, guilty of? I wouldn’t take a detainee’s guilty plea as gospel. From what I can tell, Hicks is probably willing to admit to anything in exchange for the possibility of returning to Australia. Witnessing the denial of due process (and summarily sacking defendant’s counsel is a prime example of such denial), witnessing the utter lack of transparency of Gitmo’s legal machinations, what are to make of a defendant like Hicks and his pleas/statements? The system the Bush administration has set up at Gitmo self-devours any possibility of the legitimacy that normally flows from Anglo-American criminal procedure.


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  1. But this expressly is not Anglo-American criminal procedure. It’s a military commisison, and military commissions have been proven legitimate again and again since Nuremburg.

  2. Kullervo,

    The difference between this military tribunal and all previous ones including Nuremberg is that this one is done in secrecy with confessions acceptable from questionable tactics that we know are torture. No one can question or doubt that the Nazis we tried and were convicted at Nuremberg were guilty because we gave them a fair trial, open to the whole world to see. The situation was set so it looked like a fair trial. These tribunals in Gitmo are not fair trials. They are show trials. Of course everybody down there in Gitmo is guilty. Bush says so.

  3. I don’t think they’re all guilty. We ought to start prosecuting them or set them free. It is totally unfair that those innocent terrorists sit in prison every day while Cheney and Feinstein get rich off the war.

    If I were in charge, I’d free the Gitmo detainees and prosecute the CiC instead.

    Great post! Keep up the good work.

  4. Brams,

    Thanks. I don’t think they are all guilty either. I think they should have been prosecuted through the regular system and let the evidence lie where it lies. By incarcerating them and interrogating them in secret, you cast serious doubt upon the fairness of the system, and in the end on the fairness of the conviction. Like I said, I will be really surprised if someone ends up being NOT guilty.

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