March 30, 2007 – “Freedom Is Not Free”

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Hina Shamsi – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

March 30 , 2007
Freedom Is Not Free
There’s many a t-shirt here at Guantanamo with the famous slogan, “Freedom Is Not Free.” Its most haunting use, as an inscription on the Korean War Veterans Memorial, is a reminder that so many of the privileges we take for granted come at a cost. It’s a bit jarring, though, to see the t-shirt at a time when rumors are circulating about plea negotiations that may eventually lead to David Hicks’s freedom. At what cost will Hicks leave this place and what are the costs for the United States?

The Australian government, in Canberra, has leaked details that both the defense and prosecution teams here are not allowed to discuss. According to the Sydney Morning Herald, Hicks will return to Australia and serve about a year, and the Australian Attorney General has said that his government would not reduce the term to which Hicks will be sentenced. But nothing formal will be announced until Friday, when the commission resumes at 8 a.m. We expect a long day; the indications are that all participants in the process want it concluded by the weekend.

Mr. Hicks’s decision to accept a plea on these or similar terms is entirely understandable, but the process it took to arrive at this point is an indictment of the fairness of the military commissions system, and the hurdles remain dauntingly high for the other 385 men still detained here. The key factors that went into securing a plea deal for Hicks include:

He’s a citizen of one of the United States’ staunchest allies;
There’s mounting political pressure on the Australian government, which is facing an election this year, to bring Hicks home;
Members of the Australian government heavily lobbied the Bush administration. There are reports that Australian Prime Minister John Howard spoke personally to Vice President Dick Cheney about the case. (I have a delicious time imagining that Mr. Cheney acknowledged, as he has said in the past, “It is easy to take liberty for granted, when you have never had it taken from you” in response to Mr. Howard.); and
A high-powered team of lawyers who have advocated for Hicks on three continents (apart from the U.S. and Australian legal teams, Hicks is represented by attorneys in the U.K. in a proceeding that raises the issue of his torture and abuse in Afghanistan and Guantanamo).

In this context, it’s clear that the plea process is outcome driven – help the Howard government by sending Hicks home – a conclusion supported by what we know so far about the negotiations. The chief military commissions prosecutor told the press in a briefing today (which we human rights observers were not told about or allowed to attend) that prosecutors are asking for substantially less than the plea deal for John Walker Lindh, the so-called American Taliban, who was sentenced to 20 years imprisonment in October 2002.

The fact that even the chief prosecutor is comparing Hicks to Lindh, who was charged in a federal criminal proceeding, raises the question why Hicks had to be brought to Guantanamo for a military commissions process instead of being prosecuted in federal court. And, in contrast to past descriptions of Guantanamo detainees as “the worst of the worst,” the prosecutor now refers to Hicks as a member of the “rank and file.” How many other detainees now fall into this lower category? Is their trial by this second tier system that is less about justice than a “rush to injustice” worth the costs to the United States’ prestige? Secretary of Defense Robert Gates gave the answer on Thursday, in testimony before Congress, when he said about closing Guantanamo, “one of the reasons why I had recommended or pressed the issue of trying to get the trials moved to the United States, [was] because I felt that no matter how transparent, no matter how open the trials, if they took place at Guantanamo in the international community, they would lack credibility.”

Scrap the Commissions and Move Forward
Also on Thursday, my colleague, Elisa Massimino, testified before the House Armed Services Committee about what should be done at Guantanamo and how terrorist suspects should be tried. She told the Committee, “The most important questions this Committee should be asking about the current policy are: Is it smart? Is it working? Does it serve the overall objective? Does it comport with our laws and values? Guantanamo policy fails all those tests.” Here, in short, are

Human Rights First’s specific recommendations:

Close Guantanamo;
Release or transfer detainees not charged with crimes and bring the rest to the United States;
Try terrorism suspects either by court martial (if the laws of war properly apply to them) or, preferably, in a regular federal criminal proceeding;
Restore habeas corpus as the necessary safety net it is, to ensure that a person deprived of liberty is lawfully detained;
Amend the definition of unlawful enemy combatant that the United States uses, because it blurs the vital distinction the laws of war make between combatants and civilians; and
Repeal the Military Commissions Act of 2006.
To implement these recommendations will require concerted effort and some hard choices on the part of both Congress and the administration. But these are necessary steps and we need to start taking them now. In Ed Murrow’s words, “We cannot defend freedom abroad by deserting it at home.”


Published on March 30, 2007


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