Tuesday, March 30, 2004

Guantanamo Bay tribunals
On Thursday, I was fortunate to hear a talk by two US military lawyers who have been assigned to defend certain of the detainees -- those who have been charged -- held at Guantanamo Bay. What I was unprepared for, given that these were, after all, military lawyers, was how critical of the process they were. Indeed, they went so far as to describe the tribunals as "fundamentally flawed" and insinuated that they would not amount to fair trials. Here are some of the procedural and substantive problems they pointed to:

- There is no attorney-client privilege. Conversations between lawyers and clients may be taped. Furthermore, lawyers must inform their clients of this fact. Clearly, this leads to a problem of trust.
- The individuals sitting on the tribunals are not lawyers or judges but military officers, most of whom have no legal training.
- There is no right of appeal to an independent authority. Instead, there is only a right of appeal to the Department of Defence, the same body that established the tribunals and appointed the officers.
- The defendants will not be tried under US domestic law or international law but under a statute drafted by the Department of Defence which is apparently vague and extends the reach of already vague crimes such as conspiracy (the crime that the first two defendants have been charged with, and which is usually regarded as a charge of last resort by US prosecutors). Incidentally, since the statute was drafted after the alleged crimes were committed, there is clearly an ex post facto problem (its a basic tenet of the rule of law that you shouldn't be charged under a law that didn't exist at the time of your actions).
- Even if the defendants are acquitted, they might not be released and could still be detained indefinitely. They might also be detained beyond any sentences imposed. (If you don't believe me, look here).
- The tribunals may be held in secret and might not be open to the public.
- The standard for the admission of evidence is lower. Instead of "relevance" the standard is "probative value." There are fears that this might lead to evidence being admitted that would normally be excluded on the basis that it can't be tested (such as hearsay).

There are, the defence lawyers argued, alternatives to military tribunals, the most obvious of which are international tribunals, established by the UN, court martials or trials in US domestic courts (the US has a terrorism act, which would be of application). Sadly, none of these options, which would lead to fair trials, have been pursued. Fortunately, the US Supreme Court has agreed to decide the question of whether it has jurisdiction over Guantanamo Bay, which might bring some clarity to these issues.


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