Global Policy Forum

By Jim Lobe

Just as the administration of President George W. Bush has begun mending fences damaged by the U.S. war in Iraq in hopes that other countries will contribute peacekeepers to Washington's troubled occupation, its announcement Friday designating six of its foreign captives in the U.S. "war on terrorism" as eligible to be tried before military tribunals appears likely to annoy some of its strongest allies, especially Britain.

cReports that two of the six to be tried are British citizens captured in Afghanistan prompted expressions of concern from London over the weekend where Prime Minister Tony Blair has already has been battered by weeks of controversy over whether he misled the British public about the imminence of any threat posed by Iraqi President Saddam Hussein.

The London Observer reported Sunday that Britain's foreign secretary, Jack Straw, will ask his U.S. counterpart, Secretary of State Colin Powell, to repatriate the two men, rather than to permit them to be tried by a U.S. military court whose procedures, according to U.S. and international human rights groups, do not meet minimum due process standards and which is empowered to impose the death penalty.

The newspaper also reported that the two Britons, Moazzam Begg and Ferz Abassi, will be given a choice to plead guilty and accept a 20-year prison sentence or to undergo trial on charges that will, if sustained by the court, result in a death sentence. It said the acting British ambassador in Washington, Tony Brenton, will raise London's "official concern" about the cases directly with the White House this week.

A third defendant, David Hicks from Australia, has also been identified as one of the six, according to reports from Australia. The identity and nationalities of the other three have not been disclosed, although presumably their home governments have been informed.

The three known defendants are being held with as many as 680 other foreign captives at Camp X-Ray at Washington's Guantanamo Bay naval base in Cuba where, according to a series of court decisions, none of them enjoys the basic due-process rights required by the U.S. Constitution. Most of the captives there were seized in Afghanistan during and after the U.S.-led military campaign that ousted the Taliban government in late 2001. Some, however, were seized as part of the U.S. "war on terrorism" well after the war and in countries other than Afghanistan.

Of the hundreds who have been held at Guantanamo, only about 40 have been released and repatriated. Camp officials admit that many of those who continue in captivity held low-ranking positions in the Taliban and whose intelligence value, if any, ran out long ago. In April, the administration acknowledged that three of the prisoners were between the ages of 13 and 15.

Human rights and civil liberties groups, such as Amnesty International, Human Rights Watch (HRW), and the International Committee of the Red Cross (ICRC), have strongly protested against the conditions under which the detainees are being held, and particularly the failure to accord any of the prisoners a hearing to determine whether they qualify as prisoners of war under the Geneva Convention. Washington has instead insisted that all of the detainees are "illegal combatants" and thus not entitled to all the protections accorded to POWs.

The rights groups have also objected to the military commissions that are supposed to try at least some of the detainees, insisting that they fall far short of minimum due process standards. "Any trial before these military commissions would be a travesty of justice," Amnesty International said Friday after the announcement regarding the six who may now be tried. "We urge the U.S. administration to rethink its strategy before it causes any further affront to international fair trial norms and any more damage to its own reputation."

While the rules for the commissions incorporate some due process safeguards, such as public trials, requiring proof beyond a reasonable doubt for conviction, and the cross-examination of witnesses, these provisions are not nearly enough to overcome other serious flaws in the rules, the most important of which, perhaps, is the denial of a right to appeal to an independent and impartial court that is not part of the executive branch of the U.S. government.

In addition, the right to counsel is far too limited under the rules, according to rights advocates and military-justice attorneys in the U.S. Under the rules, all defendants will be represented by military defense counsel, even if they or their families prefer to hire a civilian attorney to defend them. That provision violates the International Covenant on Civil and Political Rights, to which the U.S. is a party, which guarantees the right of criminal defendants to be represented by an attorney "of their choosing."

In addition, limitations on defense counsel's ability to represent clients are particularly severe, according to HRW and the Lawyers Committee for Human Rights. They permit the government, for example, to monitor attorney-client communications, deny access to certain documents, and require counsel to do all their research related to the defense at the site of the commissions, presumably at Guantanamo. That means that, even if evidence or testimony were available in Afghanistan, defense attorneys would be barred from using it in the commission proceedings.

"These are fundamentally contrary to the American tradition of a fair trial," according to Michael Noone, a retired Air Force colonel who teaches military law at Catholic University of America here.

The British government clearly shares the views of the critics regarding the commissions. "It isn't something that would be able to do in this country," said Baroness Symons, a senior Foreign Office official, in an interview this weekend with the British Broadcasting Corporation (BBC), "because, of course, we would want to ensure that there is a separation between government on one hand and the judiciary on the other."

That sentiment was echoed by the Begg's father, Azmat Begg, who lives in Birmingham, Britain. On being told by the British government that his son had been designated for possible trial, he told the BBC, "I was very depressed, very unhappy, and very much worried because the judge is from the military, the prosecution is from the military, the jury is from the military and even his solicitor is from the military. Everything is being done by the military, so it is not going to be a fair trial."

The European Commission (EC) in Brussels also publicly urged the U.S. Friday to forgo any application of the death penalty in these cases. "The death sentence cannot be applied by military courts," said EC spokesman Diego de Ojeda, "as this would make the international coalition lose the integrity and credibility it has so far enjoyed."

"Our position clearly remains that the fight against terrorism should not give rise to a violation of human rights," he added.

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