Presumption of Innocence: A Response to The Senate Committee on the Judiciary on the Subject of “Detainees?
By Asim Qureshi
The United States Senate Committee on the Judiciary, after three years of injustice and unlawfulness finally decided to look into the matter of the “detainees? held in Guantanamo Bay and around the world. On the 15th June 2005, the full Senate Committee sat together in order to listen to expert testimonies from various military personnel and academics from around the United States of America. Although efforts by the United States have come somewhat late in the day, one must look to such hearings in the vain hope that they yet may do what is right.
The purpose of this article, is not to go through all the legal debates surrounding the legality of the war on Afghanistan and the legal problems surrounding Guantanamo Bay. Rather, the purpose is to look at the statements by the expert witnesses at the hearing and to analyse their remarks against one another. The US Military Commissions and the Military Order, as sanctioned by George W. Bush are specifically looked into, especially due to the ramifications they have had on the detainees and the global view of America in general.
The opening testimony in front of the Senate came from Brigadier General Thomas L Hemingway from the Department of Defense Military Commissions. Hemingway puts forward the proposition that the probative value of giving evidence is one which is internationally acceptable and that the President’s Military Order affords the detainees many rights including:
- Presumption of innocence
- Trial before an impartial and independent panel of three to seven officers
- Notification of charges in language understood by the accused
- Call witnesses and present evidence
- Cross-examine witnesses and examine evidence
- Election not to testify at trial with no adverse inference
- Appointment of military counsel at no cost to defendant and right to hire civilian counsel at no expense to the government
- Privileged communications with defense counsel
- Adequate support and resources to defense counsel
- Appointment of interpreters and translators
- Open proceedings, except as absolutely necessary to protect national security
- Proof of guilt beyond a reasonable doubt
- Review of the record of trial by a three-member review panel
According to the Brigadier General, all of these rights have already been conferred on to the detainees, thus falling in line with the ?internationally accepted standard for admissibility of evidence?. This begs the question then, why all the palaver? By looking through some of the aspects of these rights that are given to the detainees, one will be able to ascertain through the testimonies of the participants, the level to which the protection is theoretical or practically being implemented.
Presumption of Innocence
When looking at the so called “presumption of innocence” that the Americans provide, one needs to question whether or not such a presumption is even required. Surely a combatant of the opposing army is already guilty of having taken part in the war. The guilt of taking part in active hostilities for the Taliban soldiers is already there. So what is the innocence that the Americans are trying to presume? Surely it cannot be of war crimes, because if they had presumed the soldiers as being innocent, then 520 trials would have already taken place either finding the troops guilty of war crimes, or being found innocent.
Of course, as is well known, and reiterated by William P. Barr in his testimony, “The President has determined that neither members of Al-Qaeda nor Taliban fighters are entitled to the protections of the Geneva Conventions.” This kind of presuming innocence is well known all over the world, except, it is usually called presumed guilty. Before the detainees were even caught, they had been found guilty by the Bush Administration. With regard to the fairness of initial trials that they were attempting to conduct, in the testimony by Lieutenant Commander Charles D Swift, “?six detainees were subject to trial by Military Commission. The plan was to begin Commissions with guilty pleas.” Brigadier Hemingway was obviously somewhat confused when he spoke the words “presumption of innocence”. Charles Swift, the Counsel for Defense, in his day to day dealings with the Military Commissions stated quite clearly that the only way that the detainees could be heard, was by pleading guilty to charges that were unspecified.
It is not only the Taliban soldiers that were detained. One must of course pay attention to the September 11 detainees. The ones that no one speaks about. During the testimonies, it was the Honourable Glenn A. Fine who took it upon himself to speak on behalf of the PENTTBOM/September 11 detainees. After 9/11 many aliens were detained at various locations on immigration charges in connection with the terrorism investigation. The supposed exact number of people detained totalled 762. Fine commented,
“?the Department instituted a policy that any detainee on the INS Custody List had to be detained until cleared by the FBI?this “hold until cleared? policy was clearly understood and applied throughout the Department.”
There is no presumption of innocence where people are detained without any charge. If there was a real and true presumption, then the time taken to clear these people would have been significantly less. What is clearly understood that at no point were the Executive ready to let these people go without a full and “thorough? interrogation, regardless of any human rights they may have.
Due Process and Fair Trials
With the establishment of the Combatant Status Review Tribunals (CSRT), a question emerged as to whether or not the detainees in Guantanamo Bay were being given due process with regard to any constitutional rights that may come about due to the issues of extra-territorial jurisdiction. By merely holding the detainees under their control, it was being argued that the detainees had certain rights under the constitutional law of America. The Supreme Court in the case of Hamdi v Rumsfeld held that it was constitutionally unlawful for the detainees to be held without a hearing. According to J. Michael Wiggins, Deputy Associate Attorney General, this level of hearing was already given to all the detainees through the CSRTs. Similarly in his testimony Rear Admiral James M. McGarrah stated that under these tribunals, ?each detainee was properly detained as an enemy combatant and to permit each detainee the opportunity to contest the enemy combatant designation.” Those involved in the policies of detention are clearly in favour of the fact that every right has been correctly accorded to each of the detainees.
There were those that did not agree with this view. Once again it was Lieutenant Commander Charles D Swift who immediately began giving details of the kind of impartial and fair trials that were being carried out,
“The plan was to begin Commissions with guilty pleas. Two weeks after the President’s finding, a request to detail Military Counsel to Mosem Begg of Great Britain and David Hicks of Australia believed to be likely candidates for guilty pleas was made.”
The British government raised a number of concerns regarding the treatment of its citizens in Guantanamo Bay and due to this political annoyance for the Military Commissions, ?it was decided to skip the British defendants and move on in an attempt to demonstrate the legitimacy of the Commissions.” In fact, the British detainees became such a thorn for the US that they decided to release them without further interrogation.
One would think that with all the concerns that were being raised by the British government, that the US may reconsider its detaining policy. Apparently there was no such luck as the Administration, “Still determined to begin the commission with guilty pleas, Mr Hamdan was substituted for Mr Begg on the belief that he too would agree to plead guilty.” Mr Hamdan has no one to help him other than the Military Defense Counsel that decided to support justice rather than abuse. Where are all the fair and just trials that the US administration keep on saying they run, because from practice, it can clearly be seen that there is no such thing.
What is strange about Hamdan’s case, is that in the testimony given by William P Barr, he had the audacity to speak of this man as if process they were putting him through was legitimate,
“One prominent war criminal whom the United States wishes to try is Hamdan, the former bodyguard and driver of Osama bin Laden. Some individuals ? including the district court in that case ? have argued that a military commission does not afford enough process and that war criminals must receive the full benefits of a formal military court martial. These arguments ignore the long-standing use of military commissions to try war criminals and grossly misread the Uniform Code of Military Justice.”
A person may be slightly inclined towards understanding with regard to this position if the reality was the same as the lies that were uttered by this man. However the truth is far worse only working to once again reiterate the abuse of the detainees. The truth of the matter can only be best described by the words of Lieutenant Commander Swift himself,
?”I was deeply troubled by the fact that to ensure that Mr. Hamdan would plead guilty as planned, the Chief Prosecutor’s request came with a critical condition that the Defense Counsel was for the limited purpose of “negotiating a guilty plea? to an unspecified offense and that Mr. Hamdan’s access to counsel was conditioned on his willingness to negotiate such a plea.”
This however was not the only opinion relating to the injustice of trying the detainees. Professor Stephen Schulhofer from New York Univeristy of Law in his testimony further accused the US administration by stating that hundreds of detainees have not been accused of any crime and are not facing any form of trial. Further than that he claims that, ?99% of the Guantanamo detainees, more than 500 people, have not been charged with any misconduct, and they continue to be held even though many of them claim to be ordinary civilians.” If the CSRTs had been correct in their assertion of the enemy combatant status of the detainees, how could it possibly be that so many still would claim civilian status? Obviously the “guilty plea? approach is serving the authorities in good stead.
As for the PENTTBOM detainees, they were all initially designated as “witness security? inmates. By classifying them so, these detainees automatically fell of the radar and could not be traced in any way, supposedly for their own protection. Glenn Fine testified that because of this classification the detainee’s attorneys, families and law enforcement officials were unable to determine their location. Going on he states, “As a result of this designation, we found that MDC staff frequently “and mistakenly- told people who inquired about a specific September 11 detainee that the detainee was not held at the facility when, in fact, the detainee was there.” How can a man properly defend himself and prove innocence when he is afforded no representation and more than that, cannot be found due to no longer existing for the purposes of public knowledge.
The testimonies have shown that there is a great divide between what the Bush administration has promised in the way of fair trials and military commissions, and the actual practice of those promises on the ground level. One must applaud people such as Lieutenant Commander Swift who despite being members of the armed forces, still have the decency to protect the true value of justice, especially in a situation which is totally lacking in any. Without their coming forward, it is very possible that many of the abuses that have been taking place would never come to light. If the world is to change their opinion of the abuse of human rights in Guantanamo Bay, they will have to go a long way to change that opinion, for much of the resentment over the unfair nature of detainment has become deep set.
Conditions of the Detainees
It was in a scathing testimony by United States Senator, The Honourable Patrick Leahy, that the crux of many of the problems with the US handling of the detainees was highlighted. Leahy stated,
“?the Administration’s answer to every question about our detention policies has been, “Trust us.” Trust us that we know the law, and that we will comply with it. Trust us to treat detainees humanely and in accordance with our laws and treaties. Trust us that Guantanamo will make Americans safer. More than three years later, the one thing we know for certain is that any trust we may have had was misplaced.”
The standard of “humanely? seems to have dropped quite considerably over the last three years. Senator Leahy goes on to rebuke the US government for criticising other nations for operating secret prisons where detainees are hidden away and denied any meaningful opportunity to contest their detention. These sentiments during the testimonies were not just limited to Leahy, they were echoed through the testimonies of both Lieutenant Commander Swift and Professor Schulhofer, “?we cannot defeat terrorism if we win battles at Tora Bora and Falluja but lose the battle of cooperation and respect of the world’s one billion law-abiding Muslim citizens.”
Those who still recognise the truth are now finally admitting to the persecution of Muslim detainees through tactics that would clearly breach international legal obligations and any common humanity found in the world. Lieutenant Commander Swift went into the details of the kinds of abuses that were taking place against the detainees in Guantanamo Bay,
?”I was immediately confronted with the fact that the realities of his pretrial confinement did not live up to then-Assistant Attorney General Chertoff’s promise of humane conditions of pre-trial detention, including the free exercise of religion? Mr. Hamdan was held in isolation for more than seven months? cell lacked both natural light and ventilation? was not permitted to participate with other detainees in Friday Prayers”After four month’s in solitary confinement Mr. Hamdan was on the verge of being coerced into a guilty plea”?
It is these very abuses that are now filtering through to the public’s knowledge and as a consequence, the once bastion to democracy and justice, is showing itself to be nothing more than a hegemonic oligarchy. Another Senator to testify in front of the Senate was the Honourable Russ Feingold who aptly commented, “?the word “Guantanamo? has become so synonymous in the Arab and Muslim world with American abuses, that we must close the prison down”If this Administration had not sought to exploit every ambiguity in the law to justify its unprecedented actions, we would not be where we are today.” He went no to say that the Supreme Court clearly and authoritatively ruled that the President does not have a “blank cheque? to wage the fight against terrorism.
It is not just the detainees held in Guantanamo Bay and Abu Ghraib prisons who are being abused though. Once again the expert testimony by the Honourable Glenn A Fine helped to expose the abuses taking place against the September 11 PENTTBOM detainees. According to his statements that were made in front of the United States Senate there were numerous abuses occurring,
“?detainees told us that legal calls that resulted in a busy signal or calls unanswered by voicemail counted as their one legal call for that week – we did find evidence that some officers slammed detainees against the wall, twisted their arms and hands in painful ways, stepped on their leg restraint chains, and punished them for keeping them restrained for long periods?detainees were often strip searched in public view, sometimes in the presence of female officers”?
The American version of humanity is closely akin to every despotic government that has used its power to abuse their rights of the people it is supposed to protect. It is sad to see that people would still attempt to justify their actions in light of these damning testimonies especially from amongst the most respected people in their own system. It is clear that the Bush administration has no intention to protect the rights of these people, only to gain whatever information they can at whatever cost. If the US Senate fails to act now on these damning statements, then truly, there is no hope for democracy anywhere in the world. They have shown the Muslim world the wonderful practicalities of their Executive style justice, whereby the rights of the individual have no consequence in the eyes of the State.
If the American government says that it presumes the detainees to be innocent, then I guess the world presumes the US to be innocent in exactly the same way.