The accused terrorist appeared before the military tribunal, charged with conspiracy in a plot against national security. Because state secrets were involved and because harsh interrogation techniques were used to extract information, the defendant was deprived of a look at the evidence. Also denied were the defendant's traditional right to a lawyer, to face accusers, even to see the judges - they wore hoods.
No, this wasn't at Gitmo. This "court" met in the military dictatorship of Peru. And the defendant wasn't an Afghan or Arab turned over to U.S. troops by a warlord out for the $10,000 bounty. She was Lori Berenson, a 31-year-old American citizen accused of aiding the Túpac Amaru Revolutionary Movement, members of whom she befriended.
The Washington Post and New York Times condemned Berenson's 1996 trial, calling the tribunal and the brutal circumstances of her detention a mockery of justice. In the U.S., most American liberals agreed.
Now President-Elect Barack Obama - a self-identified liberal Democrat who campaigned as a champion of human rights - wants to use the same kind of kangaroo court to try victims of the notorious Guantánamo torture camp.
Obama's advisers confirm that the incoming president wants to close Gitmo. It's long overdue. But they deny that they've made a final decision about what to do with the detainees. (There's no word about the secret prisons, Navy prison ships or CIA black sites where thousands of Muslim men kidnapped by the U.S. have been "disappeared.") However, there's troubling evidence that Obama is reneging on his promise to do the right thing by the long-suffering detainees.
Insiders say that Obama is leaning toward the creation of "national security courts" - secret military tribunals where detainees would be tried without basic due process rights. They wouldn't get the right to review evidence against them, cross-examine prosecution witnesses, or -- obviously, at this point -- a speedy trial. Moreover, Obama hasn't ruled out subjecting future detainees to "preventive detention" -- i.e., holding them without charges, like Bush.
"The legal team advising Mr. Obama on Guantánamo believes that prosecuting the 'high value' terror suspects such as [Khalid Sheikh] Mohammed -- a group of about 30 -- will require the creation of a court designed to handle highly sensitive intelligence material, a cross between a military tribunal and a federal court," reports The Times of London.
"What a national security court is designed for is to hide the use of torture and allow the consideration of evidence that is not reliable," says J. Wells Dixon of the Center for Constitutional Rights, which 0D represents some of the detainees.
Of the 255 prisoners, about 60 have been cleared for release but remain at the base because their home countries, including China, view them as political enemies and might execute them. Of the remaining 195, the Pentagon admits that there's no evidence whatsoever against 135.
Obama's team doesn't know what to do about these 195 misérables.
That leaves 80 men, including the 30 "stars" like KSM, the alleged 9/11 mastermind. "If Obama wanted to move as swiftly as possible to close Guantánamo," reports Time magazine, "the strongest step he could take as president would be to simply shutter the camp by executive order and transfer all of the detainees to prison sites inside the U.S. At that point, in theory, the detainees would face four possible fates: being charged with offenses that could be tried in federal courts; court-marshaled according to the Uniform Code of Military Justice; turned over to the governments of their native countries; or simply released."
Courts-marshal of the detainees, who were dumped in Gitmo's supposed legal limbo specifically in order to deny them POW status and Geneva Conventions rights, would be bizarre.
As discussed above, many can't go home. Moreover most, if not all, of the high-profile detainees were tortured -- a fact that would almost certainly destroy any chance of obtaining a conviction in a fair trial.
You can't hold a fair trial after holding a suspect for 20 years while depriving them of access to a lawyer, family visits, or the ability to prepare for trial. The Founding Fathers understood this fact, which is why they ratified the Sixth Amendment to the U.S. Constitution. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial," reads the Sixth. A secret "national security court" held six years after "arrest" doesn't come anywhere close to satisfying this requirement.
Municipalities' interpretation of the Sixth Amendment varies. In New York City, cops have to bring you before a judge for arraignment within 24 hours of your arrest, or let you go. Other places allow a few days.
Six years? Not even in Texas.
There's only one valid legal and moral option for rectifying the human rights nightmare at Guantánamo. On January 20, President Obama should fly to Gitmo, address its inmates and personally apologize to each one for the abuses and indignities they have suffered, and which have brought shame and contempt upon the United States.
The detainees should be set free. They should be paid enough money that they should never want for anything again, then offered the right to fly home or, if they prefer, anywhere in the U.S. Finally, Obama should walk out the camp's main entrance to Palma Point, where he should sign over control of the base to Cuban President Raoul Castro.
Share this article: