Thursday, November 14, 2013 The Guardian : 12 years of judicial practice in Guantanamo and the media have lost the plot Thomas Wilner represented Guantanamo detainees at trial that established his right to be assisted by a lawyer, and the two decisions of the Supreme Court to confirm their right to habeas corpus. Originally published in The Guardian Two recent stories about Guantanamo by a couple of the most respected news organizations in the U.S., highlights how little U.S. press pays attention to the facts in the Guantanamo prison , which these days is 12 years of practice and court - overall, alerts us to the lack of understanding of the legal and constitutional issues involved with that American military base . The Washington Post recently published a front-page article entitled Next to the Afghan war casts doubt legal status of the detainees at Guantanamo. The main point of the article is certainly correct : the end of the war in Afghanistan should be the end of the legal basis for the arrest of most of the prisoners in Guantanamo. The reason : the wars created an exception to the normal rules . Normally , in our legal system , people can be jailed if accused , judge and condemn . Things are different in wartime . As stated by the judge of the Supreme Court of the United States , Sandra Day OConnor , in Hamdi v. Rumsfeld , one of the iconic failures related to Guantanamo , is permissible in wartime to detain people who fight against you but only for the duration of the conflict in which they were captured . The purpose of the detention is not criminally punish criminals , but keep them out of the conflict. Once the conflict in Afghanistan ended , those caught in the conflict and could not be detained as enemy combatants . This fact has been known for years. Apparently made headlines now only because the U.S. press had not reported before. In reporting this fact, the Post article also repeats and , unfortunately , perpetuates two fallacies about Guantanamo. First, repeated the myth that the President has been blocked by Congress to release or transfer to many of the 164 remaining detainees at Guantanamo. That is not so . Congress has passed a law that effectively blocked the President the transfer of detainees to their homes or to other countries, but later changed the law two years ago to allow President waive these restrictions . As said Carl Levin , the chairman of the Armed Services Committee of the Senate, the amendment provides a clear path for the transfer of detainees to third countries. President Obama just has not used it . The article also repeated another myth - that there are four dozen men [ in Guantanamo ] they can be considered too dangerous to release , and are not eligible for the trial because the evidence against them is inadmissible. That phrase has been repeated again and again in the press , and has never been examined. It is simply false . The basis for the government to stop each of the men at Guantanamo and is publicly available on WikiLeaks . Members of the press can examine the evidence . And they should. Clearly there are some bad guys down there under 20 , as has been recognized . All these men could be tried . The only thing that prevents his conviction is the system of military commissions , which is totally ineffective and inefficient. These prisoners were condemned long ago in our federal courts. An analysis of the governments arguments to stop most Guantanamo prisoners shows that reason can not be tried because the evidence is against him is inadmissible , but simply because it is so weak and speculative than would be laughable present in any federal court in the country. Meanwhile, on Sunday , on 60 Minutes , CBS News, included a report by Leslie Stahl at Guantanamo , which focused on whether Khalid Sheikh Mohammed , the alleged mastermind of the September 11 attacks , and others accused of Guantanamo terrorism could have a fair trial. He argued, for example, if the confessions made by these men after going through torture sessions could be admitted as evidence in the trials of military commissions . This issue may be important for some Guantanamo detainees to be tried , but that would be only 10 or 15 percent of the detainees there. The overwhelming majority of detainees accused of terrorism is not and will never be charged or tried for that. In fact, more than half of them - 84 of 164 are still there - are authorized to be released almost four years ago , according to an opinion by a special working group composed of top commission official police services , intelligence and national security . However, remain imprisoned . During the reporting Stahl who walked and talked while passing through a block of cells in Guantanamo, a detainee dramatically shouted : Please , we are tired . Or you let us die in peace - or tell the world the truth . Let the world hear what is happening. CBS did not identify the prisoner , and apparently did not try to find out why he said what he said . The prisoner was Shaker Aamer , a Saudi citizen , and before his imprisonment , was a permanent resident in Britain. Release was approved not only by the special working group four years ago, but even before, during the Bush administration. However, it has been held at Guantanamo for nearly 12 years. Thats the real tragedy of Guantanamo - not how we process those few who are defendants . The basic question is therefore why we remain prey to so many people who will never be indicted and whose release has been approved for years ? The press should do a story on this. In the first seconds of 60 Minutes , the main character of Stahl , Brigadier General Mark Martins , makes a statement that does not challenge - Stahl , which ensures that the similarities between justice in civil court and Guantanamo are greater than the differences : the defendant is presumed innocent , says Martins while walking next to coils of barbed wire separating them from those men whom the former vice president Dick Cheney crossed forever as the worst of the worst. But how can there be a presumption of innocence in Guantanamo , where innocent men have long been declared free men to remain in prison ? Would be nice if the press examine the evidence itself . And it would be a good thing if you pay more attention to the ongoing injustice at Guantánamo , as contrary to the fundamental values of our nation and a stain on the reputation of the world. Thomas B. Section headed Wilner International Trade and Investment at the firm Shearman & Sterling LLP in Washington, DC . Its official counsel detainees in Rasul v. Bush , decided in June 2004 , in which the Supreme Court ruled that detainees have the right to habeas corpus. Wilner also official attorney Boumediene v. Bush , which established in June 2008 in the Supreme Court that the right of Guantanamo detainees to habeas corpus is protected by the U.S. Constitution ( In CubaDebate )
Posted on: Fri, 15 Nov 2013 13:57:12 +0000
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