House Look at Gitmo Military Trials Brings Hot Exchange of Partisan Salvos

Courthouse News Service

The legality of the military commissions used to determine the fate of Guantanamo Bay prisoners was placed under a microscope this week in a House hearing that soon collapsed into partisan debate over how the prisoners should be prosecuted and whether they are protected by the U.S. Constitution.
The legality of the military commissions used to determine the fate of Guantanamo Bay prisoners was placed under a microscope this week in a House hearing that soon collapsed into partisan debate over how the prisoners should be prosecuted and whether they are protected by the U.S. Constitution.

A military proseccutor told the legislators that what he saw at Guantanamo was "not all consistent" with American values or with "due process of law." 

But Texas Republican Lamar Smith argued, "Once terrorists are given additional constitutional rights, including the right to remain silent, they will do just that."

Republicans on the Subcommittee on the Constitution, Civil Rights, and Civil Liberties said detainees are not entitled to constitutional rights, and warned that if the prisoners are transferred to the United States, such rights would apply. 

Democrats replied that the order to close Guantanamo Bay Prison was a good move by the Barack Obama administration, and that a trial is the only way to determine wither the prisoners were rightfully detained. They argued that the United States has a responsibility to grant constitutional rights to all those who are imprisoned. 

Military commissions are courts controlled by the military, and are separate from the conventional criminal or civil proceedings, where members of the military serve as jurors. The commissions have been used heavily in processing detainees caught by American troops in predominately Afghanistan. 

President Barack Obama has ordered the Guantanamo Bay Prison closed before the end of the year, but Congress withheld funds for the transfer of the detainees, and requested a plan from the Department of Justice on how the prisoners will be dealt with.

Now, the government must decide what to do with them. Many legislators expressed concern that if the evidence against the prisoners does not hold up in court, they would then be released in the United States.

Nonetheless, the Supreme Court ruled that detainees have the right to challenge their detention. 

Obama originally spoke out against the commissions, which were tarnished by poor evidence and lack of transparency, but he has now said he plans to continue using them to process the detainees after changes in procedure are made. 

"These are people who have declared war on us," Texas Republican Louie Gohmert said in his push for withholding constitutional rights from detainees. "That is a different standard."

Foundation for Defense of Democracies representative Thomas Joscelyn agreed, and testified that many terrorist attacks were thwarted because detainees could be freely interrogated. 

"The real issue here is, do we really believe in due process," Massachusetts Democrat Bill Delahunt replied. He said due process is fundamental to any democracy, and characterized it as "nothing more than a search for the truth."

Wisconsin Republican James Sensenbrenner noted that prison guards at Guantanamo are attacked ten times a day. As an example, he said that when the guards put food through the portals in the doors, prisoners pull their arms and try to break them. He said the people at Guantanamo are bad, and they should not be afforded constitutional rights.

The United States can't simply say we say they're bad people, New York Democrat Jerrold Nadler argued as chair of the subcommittee, and then lock them up forever. 

Lieutenant Col Vandeveld, who served as a prosecutor at Guantanamo, described in his testimony his distaste for the military commission system. He said that he went to Guantanamo with the intention of prosecuting as many detainees as he could, but ultimately asked to be reassigned. "What I was seeing at Guantanamo was not at all consistent with our values and our due process of law," he said. 

In one case, Vandeveld was responsible for prosecuting a juvenile detainee. The evidence consisted of two confessions. One had been extracted by Afghan forces in 2002 with the coercion of a gun, and threats to kill members of the youth's family. The other was extracted by American forces immediately after they got custody of him. 

Delahunt questioned how the government could determine terrorists on such evidence, without a trial. "I hear the term 'known terrorist'. Well who's going to tell us who the known terrorists are?" he asked angrily.

"These individuals were picked up on the battlefield," Iowa Republican Steve King answered. But Denny LeBoeuf from the American Civil Liberties Union disagreed in her testimony. "Most of the people at Guantanamo were not arrested on the battlefield. They were arrested in apartments," she pronounced.

Joscelyn from the Defense of Democracies Foundation seemed to offer and explanation, saying that collecting evidence is not the same in a war, where soldiers have bullets flying at them. 

King argued against putting the detainees through the federal court system, and warned that it would lead to their release. "In the end, there will be innocent people dying at the hands of the people released from Gitmo," he said.

"We'll fit the process to the result," Nadler replied sarcastically. He continued, saying that the United States should lock up the detainees that it has no evidence against, hold military commissions for the detainees that it has mediocre evidence against, and organize trials for those it has strong evidence against.

"Once they are truly fair, they're going to look just like federal court," LeBoeuf said of the military commissions. "We have nothing to fear from our own courts," she said, and called military commissions second rate trials. 

Woodrow Wilson School of Pubic and International Affairs researcher Deborah Pearlstein suggested that the detainees be separated into three categories. The first would be prosecuted in federal courts. The second would be detainees that the government deems wrongly imprisoned, and they would be prepared for release. The third would be detainees caught in battle, and the United States would treat them as prisoners of war. 

Nobody appeared to agree on any particular plan.