Posted by Cockney Robin | 
According to The Independent, an American military lawyer (name withheld) has spoken out against the process used by secret military tribunals at Guantanamo for determining whether detainees are "enemy combatants." The whistleblower is an army major who is stepping forward to protest the detention of Sudanese hospital administrator, Adel Hamad. The British lawyer who is representing Mr Hamad, who has been held for five years, says that after talking with doctors who worked with Hamad at an Afghan Hospital, he is certain of Hamad's innocence. "Mr Hamad is an
innocent man, and he is not the only one in Guantanamo," he said.(Independent) Combatant status review tribunals for 558 detainees were held in
2004 and 2005. Of all of those, only 38 were found not to be "enemy combatants."(Independent Those classified as enemy combatants could be held indefinitely without charges and without access to a lawyer.(Independent)
The army major (name redacted), whose testimony will be the "centrepiece" of a December 5 hearing before the US Supreme Court, has taken part in 49 review panels..(Independent) He is, of course, not the first participant to speak out against the proceedings at Guantanamo.
Lieutenant Colonel Stephen Abraham, 46 years old and with 26 years of service in US military intelligence, decried the fairness of the proceedings in an affidavit attached to a habeas corpus appeal on behalf of one of the detainees. (Independent ) A June 30 post at this blog discusses Abraham's statement and the immediate reaction of a number of American "law bloggers" such as Eugene Volokh and Orrin Kerr.
The new allegations by the recent whistleblower seem consistent line with those made by Lt. Col. Abraham.
The army major has said that in the rare circumstances in which it was decided that the detainees were no longer enemy combatants, senior commanders ordered another panel to reverse the decision. The major also described "acrimony" during a "heated conference" call from Admiral McGarragh, who reports to the Secretary of the US Navy..When the whistleblower suggested over the phone that inconsistent results were "good for the system ... and would show that the system was working correctly", Admiral McGarragh, he said, had no response.. (Independent).
In May 2007, a third military lawyer was so disturbed by the situation of the terror detainees at Guantanomo that he leaked their names to human rights lawyers .(TPM Cafe) He was sentenced to six months in the brig as a result.
Prior to Diaz's sentencing, New York human rights lawyer Scott Horton commented scathingly in Harper's Magazine on the Navy's proceedings against him:
The government had a legal obligation to disclose the names to the Red Cross—an obligation imposed by the Geneva Conventions, and followed by fifty years of military tradition. That obligation exists for simple reasons. Throughout human history, persons held in secret detention have been the victims of heinous abuse by their captors. They have been routinely tortured, abused and murdered . . . just as has in fact happened with detainees at Guantánamo, to our nation’s lasting shame.
Holding persons in secret detention constitutes a jus cogens crime under international law, but it is also classified as a war crime under the Geneva Conventions and under United States criminal law—the War Crimes Act of 1996. The Department of Defense, under the documented direction of Secretary of Defense Donald Rumsfeld, decided to withhold the names of detainees seized in connection with the war on terror, including detainees seized in Iraq.
Mary Ellen O’Connell, a professor at Notre Dame Law School and one of the nation’s leading authorities on the law of war, has argued that Rumsfeld’s actions were a criminal act for which he should be prosecuted. Indeed, that may well be a consensus view among rule of law scholars... The Associated Press responded to the Defense Department’s decision to withhold information about the identity of the Guantánamo detainees by filing a Freedom of Information Act (FOIA) proceeding to compel their disclosure. The Pentagon mounted a number of increasingly absurd arguments in defending this suit, principally saying that it was entitled to withhold the names of the detainees because it would “invade their privacy” for this information to be disclosed. The federal court hearing the matter was not amused by these evasions, and ordered the disclosure of the data. Accordingly, under federal court order, the data was turned over to the AP and published.
So the names of the detainees were required to be disclosed. Their non-disclosure was a criminal act. A federal court compelled their disclosure. And now a Guantánamo JAG is being prosecuted for disclosing the names, with a claim that his action was “with intent to benefit a foreign nation.” What is the matter with this picture?...
America’s military justice process was once something the country could be proud of. It was streamlined and disciplined, but it reflected unmistakable justice..... All of this conduct is disgraceful and embarrassing. It reflects the values of a totalitarian state and not a democracy that values justice. It brings shame on the military and the nation.
The Independent calls the new whistleblower's statements "the most serious allegations to date."
See Memeorandum for reactions here
RELATED BN-POLITICS POSTS
LINKED
- Guantanamo military lawyer breaks ranks to condemn 'unconscionable' detention (Independent)
- Gitmo Panelist Slams Hearing Process: Lt. Col. Stephen Abraham Is First Member Of Military Panel To Challenge Guantanamo Bay Hearings (CBS News)
- Lt. Cmdr. Matthew Diaz: An American Hero (TPM Cafe)
- The Persecution of LtCmdr Matthew Diaz (Harper's)
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