By Kenneth J. Theisen
The Military Commissions Act of 2006 (MCA) was passed by Congress during the Bush regime. At that time and now, the U.S. government held – and has tortured – thousands of prisoners in its various hellhole prisons around the world.
The most notorious of these prisons is at Guantánamo, Cuba. But that prison holds only a small fraction of all the detainees taken and held by the U.S. The MCA did away with most due process provisions of both domestic and U.S. law. It was meant to circumvent the courts and to give the illusion of justice, while guaranteeing the U.S. military prosecutors would obtain convictions.
On October 8th the U.S. House of Representatives voted to preserve kangaroo justice for prisoners of the U.S. war of terror. The House passed the National Defense Authorization Act, which includes some changes to the military commissions used to subject detainees in the U.S war of terror to its completely rigged proceedings. This week the Senate is expected to pass the conference report and send the legislation to President Obama within the next week for his signature. Instead of abolishing military commissions altogether because they avoid giving prisoners basic due process rights, the legislation is meant to preserve these kangaroo proceedings.
The latest bill revises the MCA to remove some of its violations of due process, while preserving most other violations. The legislation still falls far short of the minimum requirements imposed by the U.S. Constitution and the international Geneva Conventions. The bill still allows coerced testimony to be admitted into evidence at the “legal” proceedings. Much of the “evidence” that the U.S. has obtained has been gotten through the extensive use of torture in the hellhole detention centers run by the U.S. military or in secret prisons run by the CIA.
This is why International and national human rights organizations call the MCA proceedings the Torture Tribunals. The MCA also allows the use of “secret” evidence which the detainee is often not even allowed to see or rebut.
The newest legislation also still allows military commission kangaroo trials of children. In the U.S. war of terror many children have been captured by U.S. and allied forces. Many have been held for years in prisons which also hold adult prisoners of the war of terror.
The American Civil Liberties Union (ACLU) still firmly believes that the military commissions, even as reconstituted, are inherently illegitimate and should be shut down for good.
Christopher Anders, ACLU Senior Legislative Counsel stated, “While this bill contains substantial improvements to the current military commissions, the system remains fatally flawed and contrary to basic principles of American justice. While the bill takes positive steps by restricting coerced and hearsay evidence and providing greater defense counsel resources, it still falls short of providing the due process required by the Constitution. The military commissions were created to circumvent the Constitution and result in quick convictions, not to achieve real justice.”
“Because of their tainted history, these proceedings, if carried on in any form, would continue to be stigmatized as unfair and inadequate, would be plagued by delay and controversy and would keep alive the terrible legacy of Guantánamo. As long as we are using anything but our time-tested federal court system, the military commissions will remain a second class system of justice.”
But military tribunals have noting to do with “justice,” even second class justice. Many people thought that the Obama administration would significantly change the way “justice” is administered in the U.S. war of terror. Obama claimed that he would order the closure of the most well-known symbol of this abuse of justice – the prison known as Gitmo. But Gitmo still exists as the administration struggles to maintain it, but at other locations. One of these locations is at Bagram, Afghanistan.
The prison there is located at a U.S. military base too. Prisoners there are also subject to torture and death. Did Obama order it to be shut? No! Instead he requested a compliant congress to give his administration additional funds so it could be expanded. He also had his Department of Justice go to court to argue that prisoners held at Bagram were not entitled to the due process guarantees of the Constitution and that they were not entitled to challenge their detention in U.S. courts. In place of legal due process his administration drafted new regulations for the kangaroo proceedings that the military uses to hold prisoners indefinitely. Congress is now going along with this charade with this latest legislation. The Obama administration also still uses extraordinary rendition to send prisoners to other countries where they are tortured.
To get an idea of what kind of “justice” is rendered by the U.S., here are some examples of motions made by detainees or their attorneys in actual cases before the military tribunals and the results of the motions:
- A motion to give the defendants, who had been held without counsel for over five years, time to meet with their lawyers before the hearings began? Motion denied. I guess the prisoners should have been happy to even get attorneys as many prisoners have not. Expecting to actually meet with your attorney so they can adequately prepare a case is asking for too much “justice.”
- A motion to obtain the confidential services of experts. (This is a commonplace request in capital cases.) Motion denied.
- A motion for a capital case investigator, also routinely afforded any capital defendant in civilian courts? Motion denied.
- A motion to obtain a secure phone line so the Guantánamo defendants could speak with their attorneys at a classified facility in the states? Motion denied. The military likes to listen in on attorney/client calls I guess.
- A motion for accurate simultaneous translations in court? Motion denied. So what if the defendant can not understand the proceedings?
- This is my favorite – An oral motion for a legal pad by a defendant who is representing himself, so he can prepare written motions? The tribunal denied the motion because "you have to make that motion in writing." Of course without the paper to do so, the defendant could not make the motion in writing.
This is justice? Ask yourself why Congress and the Obama administration want to continue these kangaroo courts. Then ask yourself what are you going to do about it?