Detainee death chamber studied
By Matthew Hay Brown San Juan Bureau
Posted June 6, 2003
Plans for an execution chamber at the Guantanamo Bay Naval Base in Cuba are being studied by the U.S. military as it prepares to bring suspected al-Qaeda and Taliban terrorists to trial later this year.
A Pentagon spokeswoman said Thursday that the base's prison commander is discussing whether to include the death chamber in possible plans for a permanent prison.
However, Lt. Cmdr. Barbara Burfeind stressed that the proposals being put together by Maj. Gen. Geoffrey Miller still have to be submitted to Secretary of Defense Donald Rumsfeld and President Bush.
About 680 people captured during the war in Afghanistan are being held at the base in the makeshift prison known as Camp Delta.
Burfeind said Miller was being prudent in planning for all the elements that military tribunals could bring -- including long-term prison sentences or even death penalties -- once they start. The trials could start later this year.
At Guantanamo, prison-camp spokesman Lt. Col. Barry Johnson said authorities have started preparations for the trials. Several old offices at the base are being spruced up for use as courtrooms, and base commanders are discussing a permanent facility to house prisoners for years. In addition, Johnson said, the base command has discussed building a death-row facility and a chamber for execution by lethal injection.
That prospect is hardening opinion against the way the United States is handling the foreign detainees, who have been held indefinitely as "enemy combatants," without access to lawyers, courts or relatives.
"Now the captors are planning how to execute them," said Vienna Colucci of Amnesty International.
With courtroom rules finalized and military prosecutors and defense attorneys selected, the tribunals -- the Pentagon calls them "commissions" -- now await the go-ahead from Bush, who will make the final call on individuals to be considered for charges.
Maj. John Smith, a judge advocate assigned to the commissions, said it is premature to talk about executions.
"We don't even have a person under jurisdiction or charges filed," he said.
But Eugene Fidell, president of the National Institute of Military Justice, said such preparations would make sense.
"It certainly shouldn't surprise anyone that the necessary steps might be taken, since the death penalty is provided for in the order establishing the commissions," Fidell said.
Administration officials have indicated plans to refer about a dozen detainees to the tribunals. Under rules developed by the Pentagon, the president would identify the individuals to be tried, prosecutors would draft charges and the secretary of defense would appoint the commissions to try them.
Cases would be argued by military prosecutors and defense attorneys before panels of three to seven officers. Defendants could retain civilian counsel, but such attorneys would have to be U.S. citizens, would be responsible for travel to and from the commission and would have to achieve at least a "secret"-level security clearance -- and still they could be excluded from sensitive information presented before the tribunal.
The panels would vote on verdicts and sentences. Cases could be appealed to a military review panel and on to the president, but no appeal is allowed through the traditional judicial system.
Legal analysts, rights advocates and others have criticized the Bush administration for refusing to declare the detainees either prisoners of war or criminal suspects and honor the rights that would apply in either case. Now they say the commissions fall short of basic fair-trial standards.
"It's not the military-justice system; it's not the criminal-justice system -- it's a thing unto itself," said Elisa Massimino, director of the Washington office of the Lawyer's Committee for Human Rights. "Repressive dictators would like to copy this."
Colucci, of Amnesty International, called the tribunals a "parallel justice system that is essentially accountable only to the executive branch."
"There's no meaningful right of appeal, no appeal outside of the system," she said. "Conceivably, someone who is not guilty, who has been subjected to an extended period of interrogation under coercive circumstances, could be brought before the commission, [which] doesn't meet fair-trial standards, convicted and put to death."
Massimino said restrictions on civilian counsel make it unlikely that competent attorneys would be able to participate. Holding the tribunals at Guantanamo would make it difficult for the public to gain access to any proceedings not closed on national-security grounds, she said.
"There are a lot of rules, a lot of words," Massimino said. "But the bottom line is that there could be a trial pursuant to all those rules that wouldn't look anything like what we would think of as fair."
Smith, the military lawyer, said the presumption of innocence, the burden on the prosecution to present proof of guilt beyond a reasonable doubt and other standards familiar to the criminal- and military-justice systems should protect the rights of defendants.
"There's been criticism, but the proof will be when you see how the trials will be conducted," he said. "There are safeguards and procedures that will guarantee a fair trial."
Smith said civilian attorneys have expressed interest in serving as defense counsel, but none has filed an application yet.
Col. Will A. Gunn, the acting chief defense counsel, said in a news briefing last month that he was looking for attorneys who would fight hard for the detainees.
"We believe in this country, and we believe in what this country espouses as its key values," Gunn said. "And among those key values is the concept that every individual accused of a crime is presumed to be innocent."
"We've all represented individuals that others may have despised, others may have been leery of, but we had a job to do," he said. "We have a job to do."
Fidell, a retired Coast Guard judge advocate who practices in Washington, D.C., and has taught military justice at Yale Law School, said constraints on defense counsel and the lack of an independent appeals process could limit public confidence in the tribunals.
"This increasingly complex canvas that we're watching may change dramatically," he said. "Large parts of it continue to be unknown."
Burfeind said Pentagon investigators now are preparing information on potential defendants for review by Bush. She said it probably would not be until this summer, at the earliest, before Bush signs an executive order identifying individuals to face trial.
One potential candidate is Zacarias Moussaoui, the suspected 20th hijacker from Sept. 11, 2001. In a federal appeals court this week, attorneys for the French citizen argued his right to call a captured al-Qaeda member as a witness in his federal trial. If the courts rule in his favor, the government is expected to move his case to a military commission.
Under current rules, only non-U.S. citizens may be tried by military commission. The Justice Department earlier this year proposed a measure that would allow the attorney general to strip U.S. citizenship from individuals for supporting a terrorist group.
"Some attention should be paid to that," Massimino said. "That may make some people take greater interest."
Richard A. Serrano of the Los Angeles Times, a Tribune Publishing newspaper, contributed to this report. Matthew Hay Brown can be reached at 787-729-9072 or firstname.lastname@example.org.
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