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Last Updated: Friday, 4 July, 2003, 14:33 GMT 15:33 UK
Guantanamo Bay
Guantanamo Bay
It has been revealed that two British men are amongst the six prisoners designated by President Bush as being eligible for trial by an American military tribunal at Guantanamo Bay in Cuba.

Peter Marshall looked at how the tribunals will operate, including an exclusive interview with the Chief Defence Counsel, Colonel Will Gunn, the man appointed by the Pentagon to run the defence on behalf of the accused.

MAJOR JOHN SMITH: (Office of Military Commissions)
I think what you're going to see with military commissions is there is going to be a full and fair trial.

JOE ONEK: (Director, Constitution Project)
I think it's going to cause problems around the world if people are sentenced to death under a system that isn't seen as fair."

COLONEL WILLIAM GUNN:
Even with the rule that we face, I'm convinced that we can provide effective justice within this setting.

WENDY PATTEN: (Human Rights Watch)
No one should be tried under these rules as they stand. If you can't try someone fairly then it's not fair to try them.

PETER MARSHALL:
As with so much in the world these days, the Pentagon, America's defence headquarters, lies at the heart of it. The Pentagon will be dispensing justice to the inmates of Guantanamo Bay. America's military chiefs will tell you they're bringing international terrorists to justice and say the military's been involved at every stage from capturing America's alleged enemies in Afghanistan, Pakistan, Africa and elsewhere, to incarcerating them in Guantanamo Bay and other undisclosed locations. Now the Pentagon is preparing to bring some of these people to trial before military tribunal, but according to some of America's critics, the terms are so limited that this will be no justice at all. The tribunals, commissions as they call them, will begin with the trial of six men, two from Britain. At the Pentagon, a basketball playing, military lawyer, Colonel Will Gunn, will be Chief Defence Counsel. He'll represent the men his president has, rightly or wrongly, labelled terrorists. Colonel Gunn says his is not the glamour role.

COLONEL WILLIAM GUNN: (Chief Defence Counsel, Military Comms)
What I mean by that is when I was initially contacted about taking on this role, I didn't initially seek it out, but what I saw immediately was that the Chief Prosecutor was perhaps that person that could be applauded in the press, that person that individual Americans could easily look to and say, "He's providing a service to the nation." But as I reflected on it further, I saw there is a need for a very different type of service that is every bit as important, and that is being performed by my office.

MARSHALL:
Guantanamo Bay, Cuba. Camp Delta. We're told there are 680 prisoners, nine of them British - in what the Master of the Rolls has condemned as this "legal black hole", detained incommunicado, without charge or trial. The tribunals are to address that.

GENERAL GEOFFREY MILLER: (Camp Delta)
All the enemy combatants that are at Guantanamo now are in some form involved in terrorist activities. They are in the proper place. We are safeguarding our nations.

MARSHALL:
So the commander doesn't question their guilt, nor their status as enemy combatants - a definition unrecognised by the International Red Cross. Prisoners of war, if tried, could expect the same conditions as American soldiers at a court martial. Enemy combatants face new rules.

WENDY PATTEN: (Human Rights Watch)
The military in the US was very proud of military justice, this isn't it. It's a lesser version of what that is, and what we've concluded is they won't meet international fair trial standards.

MARSHALL:
In a commentary, human rights and legal campaigners say the Military Tribunal or Commission rules are: "Inconsistent with the provisions of the 1949 Geneva Conventions" They note the: "Astounding limitations on defence counsel", saying the rules could: "prevent lawyers from trying to locate and talk to witnesses." They add that: "Defence counsel must represent their clients knowing that any communications with them may be monitored by government officials for security and intelligence purposes". They can be bugged. Colonel Gunn is disarmingly candid about the problems his defence team will face.

COLONEL GUNN:
As we go into this process, the ability for an individual accused person to feel comfortable with their lawyers is something that I'm extremely concerned about. We will have a cultural divide that will take us time to overcome, if we're ever able to overcome it. So I see that as a fundamental challenge associated with representing individuals.

MARSHALL:
So it's a challenge. What about the challenge that defendants won't be privy to certain information, certain intelligence evidence against them? They won't hear that?

COLONEL GUNN:
That of course could be a challenge in a given case.

MARSHALL:
What's called "a gag order on defence attorneys" means that if defence lawyers are given prosecution evidence based on intelligence or "protected information" they won't be able to check on it that with their clients. Joe Onek, adviser to America's Military Lawyers Association, describes parts of the military tribunal rules as outrageous.

JOE ONEK: (Director, Constitution Project)
The problem is that there's certain evidence that will be given to the lawyer that won't be given to the defendant and the lawyer can't even give it to the defendant. So lets give an example, supposing the secret evidence is the name of an informant. Well if the defendant doesn't know it he can't defend himself. Suppose that that informant is a life long enemy of the defendant or a family that they feuded with for a 1000 years. He won't get a chance to present that argument any say "look, this is totally unreliable." Because he won't know the name of the informant, and that's what worries us.

MARSHALL:
Inside the Pentagon, those responsible for setting up the military courts see no problem. But apparently our visit was the first time the detail of their plans had been questioned.

MAJOR JOHN SMITH: (Office of Military Commissions)
I'm confident that the Commission process has been set to be full and fair and I think that the rest of the world when they realise that they are open to be observed as much as practical, will have the same impression when they see things like proof of guilt beyond a reasonable doubt.

MARSHALL:
But it's one of the tenets of national justice that an individual should be able to hear the evidence which is facing him - surely?

SMITH:
There's an on-going war on terrorism that's going to have to keep going. And in order to try individuals whilst still protecting valuable information, Military Commission provide the best way to do that.

MARSHALL:
So the Pentagon see the commissions as a compromise between the need for some of judicial process and the imperatives of their war on terror. Others say that is not good enough.

WENDY PATTEN: (Human Rights Watch)
One of the most significant flaws in the way the military tribunals are being structured, is the lack of independent civilian appeal. That means, the President through his military designees, will serve as judge, jury, prosecutor and potentially executioner.

(Letters from Ruhel Ahmed)
"The soldiers call me by the name of Tiger and Slim Shady for some reason. Asif and Shafiq are doing OK as well."

MARSHALL:
In Tipton in the West Midlands three families live for Red Cross letters from their sons.

(Letters from Ruhel Ahmed)
"We hardly see the sun or moon anymore `cause we are inside buildings."

They thought Ruhel Ahmed had gone to Pakistan for a wedding, the next they heard he and his friends were in Guantanamo Bay.

(Letters from Ruhel Ahmed)
" I hope you all forgive the pain I brought to you both in these last few years. I know I haven't been a good son. How can you forgive me?"

MARSHALL:
Now talk of a military tribunal leaves Ruhel Ahmed's parents bewildered.

RIASOTH AHMED:
I don't know this idea for interview and why they take my boy. Every soldier there is helping each other, so you know, and my boy is an innocent person, but people are saying he is guilty.

MARSHALL:
Two Britons Moazzem Begg from Birmingham and Feroz Abbasi from Croydon are to be the first to face the military courts. Whether the Tipton Three will follow is uncertain. Similarly decisions are still to be made on the three Under 16s in Guantanamo Bay.

Will you defending juveniles, children in effect?

COLONEL GUNN:
If juveniles are brought forward and charged then yes, we will provide defence services to them.

MARSHALL:
And that's possible isn't it?

COLONEL GUNN:
That is a possibility, it's my understanding.

MARSHALL:
And you'll be defending people who will face the death penalty perhaps?

COLONEL GUNN:
Any time we're talking about a death penalty case, of course we're talking about the ultimate aspect of criminal justice and I'm very concerned with respect to that. But with respect to that, what I'm convinced of is that we have people on the staff who are going to make use of all the resources that we have available in order to provide the very best possible defence for such an individual.

MARSHALL:
So the stakes for those on trial couldn't be higher and yet the legal standards are well below those acceptable in America's own courts - civil and military. Despite everything, the President's undeterred. Indeed some individuals who had been facing criminal charges have now, on the President's orders, been taken from the justice system and placed in military custody instead. So now the charges against them have been dropped, but they're in this legal black hole, without lawyers or legal recourse, the only thing they've got to look forward to is the possibility of a military tribunal.

ABC NEWS, 24 June 2003:
His name is Ali Al Marri, he comes originally from the Persian given nation of Qatar.

MARSHALL:
Ali Al Marri was suspected of planning future Al-Qaeda attacks in the US. Last week on the eve of his trial, he was suddenly put into military custody.

LAWRENCE LUSTBERG: (Lawyer)
He had been prosecuted for approximately 18 months, and there had been a number of motions and a number of proceedings in the criminal case.

MARSHALL:
Al Marri now joins America's alleged dirty bomber Jose Padilla in legal limbo. It's also believed the Government's considering the same treatment for Zacarius Moussaoui, the so-called 20th hijacker.

LUSTBERG:
This is part of a trend whereby the Government takes people, Padilla, Mr Al Marri and I believe in the very near future Mr Moussaoui, and extracts them from a criminal justice system where they have a great deal of process available to them, to challenge their conditions of confinement or attempt to avoid a conviction. In an effort to subvert all of that, grabs them, extracts them, circumvents the entire system. I think that they believe, based on their experience, a more coercive atmosphere will yield different results, ie a confession.

MARSHALL:
You mean they will interrogate him and pressure him?

LUSTBERG:
Absolutely, that's what they will do. This is an effort to interrogate him in a way that they never could when he was in the criminal justice system.

MARSHALL:
In Guantanamo Bay, the soldiers souvenir shop stocks T-shirts. The rodent cartoons and slogans "home of the sand rat" and "Taleban Lodge" show military humour is typically robust. This doesn't mean there'll be a problem with the trials but it won't help outsiders' perception. Whatever the real guilt or innocence of the accused, perceptions are crucial.

ONEK:
Sometimes I think the people in the Defense Department forget that the real goal here is to prevent future terrorism which means we have to prevent the creation of future terrorists. And there are a lot of 17-year-old or 16-year-old boys all around the world who are watching what we do and will watch these hearings and we don't want to make Guantanamo trials a symbol to them of why they should be opposing the United States and the West in the future. I think that is the danger, one of the dangers here about having procedures that are not perceived to be fair.

COLONEL GUNN:
This country has long said we are about justice being done. That's what the principle of the Americanism means to many people. If that is going to be true, not just today but in the long-run we will have to be about justice, not just when it occurs for someone else, but also when we are threatened.

MARSHALL:
On that, the whole world agrees. What is at issue in the coming trials is not only the lives of the accused but the legitimacy of their accusers.

Newsnight can be seen on BBC Two at 2230 BST 2130 GMT, or in Real video, either live or on demand, by clicking on the latest programme button.

WATCH AND LISTEN
US Chief Defence Counsel
speaks to Newsnight about military tribunals in Guantanamo Bay



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