The Bush Administration has been fighting a failing propaganda war over its plans to try six “high-value” terrorism suspects in Guantánamo. The criticism all around the world has been withering. Only the U.S. media seems to cut them some slack. Matthew Lee at the Associated Press reported last week that the State Department had issued a cable to embassies around the world with some helpful hints about how to handle critical comments.
“International Humanitarian Law contemplates the use of the death penalty for serious violations of the laws of war,” the cable, which was written by the office of the department’s legal adviser, John Bellinger, says. “The most serious war criminals sentenced at Nuremberg were executed for their actions,” it said.
The cable makes no link between the scale of the crimes perpetrated by the Nazis, which included the Holocaust that killed some 6 million European Jews and other minorities, and those allegedly committed by the Guantanamo detainees, who are accused of murder and war crimes in connection with September 11, in which nearly 3,000 people died. But it makes clear that the American administration sees Nuremberg as a historic precedent in asking for the September 11 defendants to be executed.
Bellinger’s mastery of international humanitarian law is demonstrated by his recent debate with Philippe Sands, posted at the Guardian, in which his remarks turned him into a laughing stock. When I showed Bellinger’s statement to a prominent JAG prosecutor recently, I got an immediate response. “Wouldn’t it be wonderful if this Administration actually appreciated Nuremberg and respected what was accomplished there. But of course they don’t.”
Today the Administration’s plans for the Gitmo trials were rocked again, for the second time in a week, by disclosures from a military prosecutor who is convinced that the proceedings have been rigged. AFP reports:
The former chief prosecutor at the US detention center at Guantanamo Bay, Cuba is set to testify for the defense in the upcoming trial of an ex-driver for Osama bin Laden, the defense team said Friday.
Colonel Morris Davis, who resigned from his post in October, is to testify on behalf of Salim Hamdan, a Yemeni accused of delivering weapons to Al-Qaeda operatives and whose trial by a special military commission is to open in May. “We do expect him to testify,” said one of Hamdan’s lawyers Andrea Prasow, referring to Davis, an Air Force officer whose duty from 2005 to 2007 was to oversee investigations and cases brought against terror suspects at Guantanamo.
As noted previously, Colonel Davis is not alone in this. He is the fourth prosecutor to quit after leveling charges that the proceedings have been rigged. And will he be the last? Colonel Davis filed a complaint about manipulation of the Commissions system before he resigned. The complaint was investigated by Brigadier General Clyde J. Tate II. The report was prepared for William J. Haynes, the Department of Defense’s General Counsel, and under military protocol, the investigation could only look down the chain of command, not up. This means that the role played by Haynes, which is the obvious focus of Davis’s complaint, could not be examined. However, the findings issued on September 17, 2007 (viewable here) make clear that a significant number of prosecutors other than Colonel Davis were interviewed, and that the criticisms leveled by Davis were broadly shared by his colleagues.
This raises another delicate question: how many further prosecutors will quit before the trial date rolls around? That is a painful decision, of course, entailing sacrifice of an often deeply-held commitment to country and service, the prospect of joblessness in a recession and economic hardship or uncertainty. What does it say about an Administration that it puts a choice to men and women in uniform between compliance with ethics and the rule of law, and the dictates of their political superiors? But that is the dilemma that these JAGs face.