America’s Guilt: the Prisoners in a Legal Black Hole

President Bush yesterday described more than 600 detainees at Guantanamo Bay as “illegal non-combatants picked up off of the battlefield”. But there is another glaring illegality here — which is entirely the responsibility of the US Government. At Guantanamo, hundreds have been held without charge for two years, abandoned in a legal black hole.

Before arriving in London, Bush insisted that the proposed military commissions for prosecuting these prisoners held at the US base would be “in line with international accords”. Nothing could be further from the truth. As currently proposed, these tribunals would trample the most basic principles of international law.

Lord Goldsmith, the Attorney-General, has had tough talks with Washington, hoping to secure fair trials for two Britons, Feroz Abbasi and Moazzam Begg. He got a guarantee that the pair will not be executed and will be allowed confidential access to their lawyers. Otherwise, the US Government sent him home empty-handed. That bodes poorly for all other Guantanamo detainees, including seven Britons, who could be brought before the commissions.

Tony Blair told the Commons last month that we had to realise “there is a reason why these people have been detained”. The depressing fact is that there is no way for us to judge whether that is true. Any charges against the detainees have not been made public, and the stories told by prisoners eventually released from Guantanamo suggest that the flimsiest of reasons for detention sometimes suffice.

The military commissions´ rules would not allow defendants to have their cases reviewed by independent civilian courts, even on appeal. This is why the commissions are profoundly unjust. Even US court-martial verdicts can be appealed to a civilian court. But these military commissions would allow appeal only to Bush, the Defence Secretary, Donald Rumsfeld, or their appointees. Bush and Rumsfeld have already proclaimed the guilt of those at Guantanamo, calling them “bad people” and “the worst of the worst”. In short: the US Government, with hardly an open mind, has made itself prosecutor, judge and jury.

Under prodding from Lord Goldsmith, Bush would consider appointing civilians to an appeal panel of judges. But these judges could be removed by Bush, and thus still have no independence. As for the trial itself, the rules do not ensure that a suspect can see all evidence against him — leaving him in the extraordinary position of having to defend himself in the dark.

The only person allowed to see all the secret evidence would be a lawyer appointed by the Pentagon, but that lawyer cannot discuss that evidence with the suspect. That makes it impossible for the suspect to marshal key facts that might prove his innocence. A suspect can hire his own lawyer, but he also would not have access to the most secret evidence, even after a full security vetting. Trials conducted in these circumstances would be a grotesque parody of justice. Repatriation for Abbasi and Begg would help those two men, not least because they might well be released for lack of evidence that could be used in a British court. It would, however, leave the broader concerns unaddressed.

Defeating terrorism means convincing the world of the importance of the rule of law. The Bush Administration severely handicaps this effort if, in the process of fighting terrorism´s violation of the right to life, it so fundamentally violates the right to a fair trial. Blair must use his political capital in Washington to make that point — not discreetly, but loudly enough to be heard, at last, by the rest of the world.

The author, Kenneth Roth, is executive director of Human Rights Watch.

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