Deborah Colson [senior associate, Human Rights First, Law and Security]: "In a March 2003 Office of Legal Counsel memorandum, released for the first time last week, John Yoo justified the use of cruel interrogation techniques on "unlawful combatants held outside the United States" - including prisoners at Guantánamo Bay - by claiming that the president's commander-in-chief authority trumps federal and international law against torture. The Justice Department rescinded Yoo's memorandum nine months after it was issued. But the reverberations continue to be felt far and wide - both within the CIA's current "enhanced" interrogation program and, increasingly, in the military commission proceedings at Guantánamo.
Yoo's "shock the conscience" test for evaluating the legality of interrogation techniques is reflected in the Bush administration's current policy governing the CIA program. This policy, which was established by executive order last July, appears to permit even "willful and outrageous acts of personal abuse" so long as their primary purpose is to gain intelligence rather than to humiliate or degrade the prisoner. The effect is to blur the line of prohibited conduct to the point where any cruel treatment may be justified if said to be needed for intelligence purposes.
The military commission system at Guantánamo is also tainted by those within the Bush administration who justified and authorized prisoner abuse.
Human Rights First is one of four advocacy organization that have been granted permission to monitor the military commission proceedings. We have attended every hearing held at Guantánamo since 2004 and have sent an observer again this week to observe proceedings in four separate cases: continuing pre-trial proceedings in the cases of Omar Khadr and Ahmed al Darbi, and the arraignments of Ali Hamza Ahmed Suliyman al Bahul and Ibrahim Ahmed Mahmoud al Qosi. Khadr, al Darbi and al Qosi are among scores of Guantánamo prisoners who allege abuse in custody. To date, fifteen Guantanamo prisoners, including the four men who will have hearings this week, have been criminally charged. The first military commission trial is expected to begin sometime this year.
The military commission system was designed to legally sanitize evidence obtained through abusive interrogation techniques, both at Guantánamo and by the CIA. The Military Commissions Act allows the introduction of statements extracted through coercion and cruel treatment, ignoring fundamental fair trial standards that have been part and parcel of the American justice system for more than 200 years.
Terrorist suspects should be vigorously prosecuted, but no trial held under this system will be viewed as legitimate. In fact, the continued existence of these military commissions only undermines the nation's ability to bring accused terrorists to justice.
So what is the alternative? In a recent posting on Slate, Harvard Law School professor Jack Goldsmith suggested trying Guantánamo prisoners and other suspected terrorists in "national security" courts under modified rules of evidence, secrecy and security. But national security courts do not yet exist, and - like the military commission system - they would have to be created from scratch. Among other problems, modifying the rules that govern ordinary criminal courts only guarantees protracted litigation and unnecessary delay. The U.S. government should try terrorist suspects in federal criminal courts or by military courts-martial, according to time-tested procedures and protections that ensure fair process under the law."
"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First.