The Pentagon is taking final steps for military tribunals of detainees held in Guantanamo Bay — preparations that include contingency planning for executions, according to the top U.S. military official at the prison camp in Cuba.
The United States in early May finished the rules governing the military tribunals, or “commissions,” expected to determine the fate of some of the nearly 700 prisoners captured in Afghanistan over the last 18 months. The chief prosecutor and chief defender of the suspects have been chosen. Among the final steps before tribunals can go forward are a review by President Bush of the cases recommended for trial, who must agree there is “reason to believe” the detainee was involved in terrorism.
But this move toward ending the legal limbo of the detainees is unlikely to put to rest the controversy surrounding the legality of the detentions, particularly if the tribunals lead to executions, as some legal experts expect.
Maj.-Gen. Geoffrey Miller, in charge of the detention facility called Camp Delta at the U.S. naval base in Cuba, said one plan calls for a death row, a permanent prison, and a possible execution chamber, the British newspaper Mail on Sunday reported May 25.
Pentagon press spokeswoman Lt. Commander Barbara Burfeind recast the statement in a followup interview with MSNBC.com: “(Miller’s) response was they are doing prudent planning, recognizing that there may be a requirement in the future,” said Burfeind. “He’s just recognizing the fact that, yes, (the death sentence) is one of the possible outcomes. Burfeind characterized the line of questioning as “premature.”
Indeed, a list of suspects for trial has not yet been sent to President Bush for review. Military officials stress that the commissions were set up “should it become necessary” for the trials.
Administration officials have indicated that they expect about a dozen suspects to face terrorism-related charges before the tribunal. The death penalty is provided under the U.S. order on the commissions and experts following the Guantanamo drama believe chances are good that military prosecutors will seek to impose it.
“The military tribunals are clearly intended to be used in capital cases,” says Jonathan Turley, a professor of constitutional law at George Washington University with experience in espionage and and national security cases. “There is no question the top candidates for tribunals would also be candidates for the death penalty.”
There is no precedent for Guantanamo tribunals, although the Pentagon compares them with the Nuremberg trials that followed World War II. The Bush administration is clearly not shy about use of the death penalty, especially where the war in terrorism is concerned.
The administration has said it will seek the death penalty in the case of accused Sept. 11 conspirator Zacarias Moussaoui, a French citizen, if he is convicted. Germany and France, where the death penalty is banned, say they offered evidence in the case only on condition that it not be used to pursue his execution.
In Iraq, the administration opposes a U.N. war crimes tribunal, in part because international participation would likely exclude the possibility of death sentences.
The legal status of the detainees has been hotly debated since they started arriving in Guantanamo in January last year.
There are about 680 detainees at Guantanamo, from at least 40 different countries, captured during the U.S.-led military campaign to drive the Taliban leadership and foreign al-Qaida fighters from power in Afghanistan. The campaign came in reaction to the Sept. 11, 2001, attacks on the United States, which the government blamed on the al-Qaida network.
Despite international pressure, the Bush administration refused to label these detainees “prisoners of war,” which would have entitled them to certain rights under the Geneva Conventions. Because the detainees are kept outside the United States, they are also not entitled to many of the protections provided by U.S. law.
The administration has weathered intense criticism for what many critics see as a breach of international law, and a blow to U.S. legal and ethical standards, and insisted that the detainees are treated humanely.
In an apparent bow to critics, it recently added a medium-security facility for Camp Delta detainees who were deemed non-threatening. And following a spate of suicide attempts — there have been 27 tries to date — military officials opened a mental health clinic for detainees.
But the Pentagon has been unbending in its conviction that holding hundreds of people indefinitely, without charge, and without recourse to legal counsel, is justified to neutralize the terrorist threat.
In writing rules for the commissions, the government accepted the standard that guilt must be proven “beyond a reasonable doubt.”
But critics say the rules favor the prosecution, practically ensuring convictions.
Turley of George Washington University says the rules allow for use of evidence that would be thrown out in a U.S. court. “The prosecution can produce any evidence it wants... The rules are very disingenuous.”
Defendants are provided military legal defense once the tribunals get under way. They also could have civilian lawyers, but only if they can pay for them — the U.S. government is not paying legal fees, security clearance fees, or airfare for non-military counsel.
The tribunals may also be held behind closed doors, to meet concerns about national security.
Air Force Colonel Will Gunn, named acting Chief Defense Counsel on Guantanamo cases, insists that his team will fight vigorously for the defense of the accused, and says choosing people of “high integrity” will insulate his team from political pressure in the Pentagon.
“We’ve all represented individuals that others may have despised, others may have been leery of, but we had a job to do... We have a job to do. We believe in this nation. And we believe in what this nation espouses,” he said, answering questions at a press briefing in late May.
Under the rules of the military commissions, which will have between three and seven members, a two-thirds vote is required to convict the suspect. A unanimous vote by a seven-member commission is required to obtain a death sentence.
Most of the detainees will never face charges, it appears. But they may still wait a long time for resolution of their cases.
According to the Pentagon’s Burfeind, each of the detainees is assessed on three fronts: Can he provide any valuable intelligence to advance the war on terrorism? Has he committed any crime? Does he present any threat continuing threat to the United States? When the answer to all three of these questions is “no,” the detainee is to be released.
It is a process that is under way,” says Burfeind. “There is no timeline.”
In 18 months, 37 Guantanamo detainees have been released and four others have been transferred for further detention in Saudi Arabia.