Taxi to the Dark Side Page #11

And so I managed to scream and plead with one of the guards to get me a needle to put me to sleep.

[Clive Stafford Smith, Lawyer for Guantanamo detainees, including Moazzam Begg] We fought for 2-1/2 years for just the right to go see the prisoners,

and then fought for months more to get security clearance so the Military would let you in there.

I mean, this is bizarre! It never occurred to me that when I went to law school in America,

that we'd be sitting around talking about whether we could have access to our clients.

And whether our clients had been tortured!

[Tom Wilner, Lawyer For 11 Kuwaitis in Guantanamo] Habeas corpus is really the essence of the rule of law.

Not giving people a basic hearing when you take away their liberty

is one of the reasons we fought the revolution. That the King can't deprive somebody of liberty without a hearing!

4. The military commission at issue lacks the power to proceed because its structure and procedures violate both the UCMJ and the four Geneva Conventions signed in 1949. Pp. 49~72.

(a) The commissions procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to close. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and other national security interests. Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officers discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdans commission permit the admission of any evidence that, in the presiding officers opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other protected information, so long as the presiding officer concludes that the evidence is probative and that its admission without the accuseds knowledge would not result in the denial of a full and fair trial. Pp. 49~52.

(b) The Government objects to this Courts consideration of a procedural challenge at this stage on the grounds, inter alia, that Hamdan will be able to raise such a challenge following a final decision under the DTA, and that there is no basis to presume, before the trial has even commenced, that it will not be conducted in good faith and according to law. These contentions are unsound. First, because Hamdan apparently is not subject to the death penalty (at least as matters now stand) and may receive a prison sentence shorter than 10 years, he has no automatic right to federal-court review of the commissions final decision under DTA 1005(e)(3). Second, there is a basis to presume that the procedures employed during Hamdans trial will violate the law: He will be, and indeed already has been, excluded from his own trial. Thus, review of the procedures in advance of a final decision is appropriate. Pp. 52~53.

(c) Because UCMJ Article 36 has not been complied with here, the rules specified for Hamdans commission trial are illegal. The procedures governing such trials historically have been the same as those governing courts-martial. Although this uniformity principle is not inflexible and does not preclude all departures from courts-martial procedures, any such departure must be tailored to the exigency that necessitates it. That understanding is reflected in Art. 36(b), which provides that the procedural rules the President promulgates for courts-martial and military commissions alike must be uniform insofar as practicable, 10 U. S. C. 836(b). The practicability determination the President has made is insufficient to justify variances from the procedures governing courts-martial. The President here has determined, pursuant to the requirement of Art. 36(a), that it is impracticable to apply the rules and principles of law that govern the trial of criminal cases in the United States district courts to Hamdans commission. The President has not, however, made a similar official determination that it is impracticable to apply the rules for courts-martial. And even if subsection (b)s requirements could be satisfied without an official practicability determination, that subsections requirements are not satisfied here. Nothing in the record demonstrates that it would be impracticable to apply court-martial rules here. There is no suggestion, e.g., of any logistical difficulty in securing properly sworn and authenticated evidence or in applying the usual principles of relevance and admissibility. It is not evident why the danger posed by international terrorism, considerable though it is, should require, in the case of Hamdans trial, any variance from the courts-martial rules. The absence of any showing of impracticability is particularly disturbing when considered in light of the clear and admitted failure to apply one of the most fundamental protections afforded not just by the Manual for Courts-Martial but also by the UCMJ itself: The right to be present. See 10 U. S. C. A. 839(c). Because the jettisoning of so basic a right cannot lightly be excused as practicable, the courts-martial rules must apply. Since it is undisputed that Commission Order No. 1 deviates in many significant respects from those rules, it necessarily violates Art. 36(b). Pp. 53~62. ...Hamdan v. Rumsfeld, decided by the United States Supreme Court on June 29, 2006

In 2004, 2-1/2 years after the first detainees had arrived in Guantanamo,

The Supreme Court rejected the Bush Administration's claims that it could hold detainees indefinitely

Without allowing them to challenge their detention in the courts.

After the decision, the Military installed special new tribunals to judge whether detainees should remain in Guantanamo.

[Tom Wilner, Lawyer For 11 Kuwaitis in Guantanamo] The Combatant Status Review Tribunals, which the Government hurriedly put in place

nine days after we won before the Supreme Court, are a joke!

[Clive Stafford Smith, Lawyer for Guantanamo detainees, including Moazzam Begg] You have no rights! You have no right to a lawyer.

You have no meaningful right to witnesses. You don't really know what the charges are

And you certainly don't know what the secret evidence is against you.

They may not ever know! But that doesn't eliminate the opportunity

they have to make a case for why, if they were returned in the future,

why they would not continue to pose a threat.

[Clive Stafford Smith, Lawyer for Guantanamo detainees, including Moazzam Begg] Many of my clients are found not guilty at the CSRT Tribunals.

And then the Military thinks that doesn't sound so good. They were being called "Not Enemy Combatants, NEC,

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