A detainee at Guantanamo Bay is dragged by officials. While some versions of the truth may be revealed through court proceedings, the government has ensured that it will control the flow of information by asserting that all pertinent documents to the defence of Guantanamo detainees are “classified.” — File photo by Reuters
A detainee at Guantanamo Bay is dragged by officials. — File photo by Reuters

James Connell, attorney for Ammar al-Baluchi, a Guantanamo Bay detainee, recently returned from a pre-trial hearing for his client and agreed to discuss the development of his case with Dawn. When asked whether the substantive issues of the case had been decided yet, Connell responded that the trial was still years away and that “we don’t even have the procedural framework, much less a decision on what the rules are going to be and how to apply them.”

However, the highest levels of the US military commissions have made some binding conclusions in the past, which Connell describes as “horrifying.” He explained that the commissions determined that the Equal Protection Clause of the US Constitution does not apply to Guantanamo Bay detainees. Connell explained that the equal protection clause “means that everyone gets treated equally,” and after its suspension, the US government “could make a law that only Muslims be held in Guantanamo Bay.” He concludes that “if they are allowed to discriminate on the basis of race, religion or national origin, there is no limit to the damage they can do.”

However, Connell said that the most appalling thing to come out of the tribunals last week was that “the government claimed that it owns and controls the observations and experiences of Mr. al-Baluchi and others with respect to what happened to them in detention.” He went onto say that this violates every principle of international law and is akin to slavery, because “rather than owning someone’s body, the government owns someone’s mind.”

All of these conclusions and arguments have manifested in the dehumanisation of the detainees at Guantanamo Bay. However, Connell argues that it is important for the public to be aware that the detainees at Guantanamo “are people who have an identity… [and] things they care about, people they love.” As such, he was pleased when the judge allowed Guantanamo Bay suspects the ability to choose their own court attire, within reason.  He explained that the ability to wear a shalwar kameez, “allows my client to assert his identity in a way that the government has been trying to take away.”

Along this line, Connell and his fellow defense attorneys have tried to assert the right of their clients to tell their side of the story. This especially includes the right to detail the torture that detainees were subject to after being detained. The US government has rejected discussions of torture in the court proceedings, deeming them classified, which Connell concludes is a deliberate attempt to “cover-up evidence of torture.”

He explains that the government has made the process of classification ambiguous as a strategy to stifle the defense’s ability to reveal mistreatment that their clients suffered during detention. The government has imposed a far-reaching presumptive classification rule which states that any information derived from a detainee is presumed to be classified and cannot be investigated or discussed by their attorney.  This includes allegations that the confessions relied upon by the prosecution were procured through illegal torture techniques, which the defense can neither raise in front of the judge nor verify on his/her own. Further, if the detainee gives his attorney a list of people that can prove his innocence, the list is presumed to be classified and cannot be verified by the defense attorney in order to fully represent their client.

In furtherance of its cover-up, the government’s prosecutor scoffed at Connell for raising the issue of torture, rhetorically asking whether the government should dismiss all charges against suspects for their despicable terrorist acts ‘just’ because they were tortured.  Connell states that this is a reductionist argument and that the prosecution was “trying to take a complicated argument and reduce it to its simplest most mockable form.” In contradistinction to the government’s argument, Connell argues that torture is important through every stage of the trial from the public’s perception of the suspects to the truthfulness of ill-gotten evidence used against them.

When asked about the growing public perception in the US that terrorists can be tortured and are not be entitled to constitutional rights due to the heinous nature of their crimes, Connell disagreed. He argued that “once a tool becomes available to the government, once limits are crossed, the government feels that it has that tool to use it the next time…right now its Muslims they are after, but in World War II it was Japanese they were after, in the 19th Century it was Chinese and before that it was Native Americans.” All of these prior injustices were supported by the public at the time but were later recognised as dark spots in America’s history, and the belief that terrorists don’t deserve rights falls into this discriminatory tradition.

He went onto explain that unlike his experience as a defense attorney in American civil courts, “where you go in with 200 years of precedent, understanding what the rules are and always fighting on the fringes,” military tribunals do not have the same established basic rules. At one point, the military judge in al-Baluchi’s case blatantly said that he does not know what law he was required to apply in the case.

Connell explained that the reason for this uncertainty is because the rules for military tribunals are created ad hoc, which means that “the military commission which exists now is different than the one set up in 2006, which is different from the one that was set upin 2002.” Due to this lack of continuity, the judge is not certain what procedural framework to apply, and defense attorneys serving clients in Guantanamo find it exceedingly difficult to defend their clients meaningfully.

Connell has repeatedly asked the judge to establish a framework so that he can begin to make substantive arguments defending his client’s constitutional rights.  One of his substantive and procedural arguments is that his client should be presumed to have all the rights in the Constitution, unless the prosecution can prove that granting such rights would be impossible in Guantanamo. The US government has attempted to presume that most constitutional rights do not apply in Guantanamo, and so a ruling from the judge demanding the opposite is requisite to establish fair trial procedures.

This failure of the military commission to set up its own rules operation is especially troubling when one considers the fact that Mr. al-Baluchi has been detained for the past eleven years. Not only does this violate his right to a speedy trial, but Connell explained that “in the meantime the government has seized a lot of witnesses and held them incommunicado, some witnesses have died, and other witnesses have gone into hiding.” Therefore, the government held al-Baluchi without charge and has made it nearly impossible for him to mount a defense by silencing witnesses that could prove his innocence.

Despite these setbacks, Connell argues that the trend emerging in his case is that the judge is taking away control from the prosecution and vesting it back in the hands of the defense where it belongs.  By allowing defendants the ability to choose their own attire and whether they will participate in court, Judge Pohl has taken small steps to grant the accused greater discretion in defending themselves.

When asked about his overall expectations for an impartial trial, Connell cited to Judge Pohl who recently said “I have hope but little optimism.” He concluded that “I have hope that there is going to be a fair trial but I am withholding judgment until I see it actually happen.” He hopes that the public becomes more aware of the proceedings at Guantanamo and suggested that readers follow @GitmoWatch on Twitter, as one of the only sources of live news from court hearings in Guantanamo.

Waris Husain, J.D., is a writer for Dawn and Friday Times and a member on the board of directors for Americans For Democracy & Justice in Pakistan.

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Comments are closed.

Comments (60)

November 1, 2012 5:31 am
You don't know mohabbat. You don't know America. And you don't know God. You speak out of hate, malice, and ignorance. May God forgive you for you take His name in jest...in vain.
October 31, 2012 10:48 am
Excellent comment.
November 1, 2012 5:51 am
What crimes have they committed? The Americans have not yet charged them with anything. There is no evidence and they have not been charged or tried for any crime. Please tell the Americans what you know of their crimes so that they can charge them for the crimes you know about. Please...
November 1, 2012 7:06 am
Gitmo is only for the torture of Muslims by non-Muslims.
akil akhtar
October 31, 2012 11:43 pm
You must be joking, Right?
Ajaya K Dutt
October 31, 2012 2:53 am
Should have been "one" bullet through the skull, as merciful mujhadin would have done.
October 30, 2012 7:48 pm
And you suggest the same happens to American captured by the Taliban?
Cyrus Howell
October 30, 2012 2:33 pm
Yes. Guantanamo is very secure from militant attacks.
October 31, 2012 8:06 pm
The Islamic countries that you talk about including Pakistan neither preach nor claim to be torch bearers of human rights, democracy and free speech unlike America and many of its like minded friends which like true hypocrites apply one law for the people /nations they like and a different rule for people/nations that they do not like .
November 1, 2012 5:41 am
These "fanatics" have not been tried, have not even been charged with a crime in 11years. There is so far not a shred of evidence against most of them. The youngest was 12years old...now going on 23---tortured every day 24hours a day, 7days a week, 365 days a year. Man has never known such horror, ever!
November 1, 2012 5:45 am
One "bullet through the head" would have been a great blessing compared to what these innocents have been put through and suffered in the past 11years.
October 31, 2012 2:42 am
Those of us who have studied this torture live in agony and have nightmares that man can do this. Many of us live in its shame...what our government has done to human beings and is doing.
October 30, 2012 2:35 pm
Sounds so horrible. Certainly something of another dark spot in the history of mankind and US in particular.
akil akhtar
October 31, 2012 11:32 pm
Hatred is all we get from your side....
October 31, 2012 2:37 am
The old man is being held up by two guards. They are bringing him from the torture chamber and can not stand up on his own. The torture and cruelty employed is the most terrible science and medicine can device.
November 1, 2012 2:24 am
Thank you for your comment Dhanus Menon. America is far from perfect, but reading these anti-American articles and comments is so discouraging to those of us who really want the best for Pakistan. Isadora (USA)
October 31, 2012 9:06 pm
Pakistani never claim to be champion of human rights but Americans do,so Dhanus should understand this simple point
October 30, 2012 7:49 pm
I absolutely agree. Prisons in Pakistan/India are no better. But being locked up in prison for a few months and locked up for 11 years and counting with end in sight (including torture) is just totally different.
October 31, 2012 10:03 pm
good article -- helpful in understanding what is going on in that distant and sometimes forgotten place. AS
Javaid Ishtiaq
October 31, 2012 2:55 pm
If the place appeals you that much, then you better start living there!!
October 30, 2012 7:24 pm
I would rather be a prisoner in Guantanamo than in Karachi, trust me. Especially if I was a non-Muslim.
October 31, 2012 3:00 pm
Yes charge first and give a fair trial in a neutral country
October 31, 2012 9:21 am
as someone said,they are lucky to be alive after the crimes they comitted.Most of them were fighting for the Taliban and you know their record.The world be a better place to get rid of them
November 1, 2012 5:27 am
Ignorance is bliss. Wish not that it may be granted you. Karachi jail is like a five star hotel compared to what is done to human beings in Gitmo. It is a crime against humanity as never has been committed before in history and no third world country can even imagine its horror.They just don't have the science or equipment.
October 31, 2012 2:32 am
When you make such foolish and crue comments please also cite the clause in the Geneva Conventions that supports your view. In fact the Geneva Conventions were statuted to protect against these very atrocities that the US has committed...only The Inquisition practiced by the Christian Church compares to such brutality, nothing else in human history even comes close.
Cyrus Howell
October 30, 2012 2:31 pm
These men have caused Pakistan a lot of trouble. Some were released and sent home. The ones who remain are there for a reason. One young ex-prisoner said the food was good, he got some education and they were given Korans and prayer rugs. He was released early.
October 30, 2012 2:31 pm
wrong! imagine the ordeal the whole world esp US would have to face with these fanatics lose. There would be Malalas all over the place. God Bless America!
October 30, 2012 9:33 am
Can't imagine what ordeal these prisoners go through. May God help them.
October 31, 2012 4:28 am
This jails show the real face of America which says itself the great supporter of human rights..........
Ikram Ullah (@ikramilluminati)
November 1, 2012 7:12 am
And you are saying this even when they are not yet proved to have done that. Read some more on GItmo and you will get to know the facts that almost 90% of those detained there are held without any evidence. Let me search for you and I will come with authentic source for that. Wait a min.
Omanba Z.
November 1, 2012 7:13 am
Facts on the ground disprove you.
Eloheem A.
November 1, 2012 7:16 am
Most of them were taxi drivers, cobblers, vegetable peddlers accused by their rivals and neighbours and handed over by Mushe for foreign exchange.
November 1, 2012 7:19 am
What crimes? They have not been charged with any crime.
Ikram Ullah (@ikramilluminati)
November 1, 2012 7:20 am
Under Geneva Conventions the Authorities in US are supposed to be booked for war crimes. Plus those involved in detainee abuse are also to be booked. Refer to the 3rd Geneva Conventions here http://en.wikipedia.org/wiki/Third_Geneva_Convention US is holding them up in Gitmo only so as the US federal and war laws are not applicable on them.
October 31, 2012 9:18 pm
Right! It's really humiliating.
October 31, 2012 3:35 pm
If so why 9 well armed for one unarmed? May be fearful of taliban(no existense there) just like Mao Mao of kenya for UK.
November 1, 2012 12:03 am
Many Americans are worried about the human rights of Guantanamo detainees. Who in Pakistan was worried about the rights of Salman Taseer and Shahbaz Bhatti? Which Taleban or al-Qaeda member worries about the rights of non-Muslims (who are blown up by these extremists)?
November 1, 2012 12:06 am
Exactly that's what the Taleban/Al-Qaeda/TTP did to Salman Taseer and the Paksiani nation clapped at the assassination of a man who voiced compassion for a wrongly accused non-Muslim.
October 30, 2012 9:06 pm
Guilty of murder in the name of a religion!
Dhanus Menon
October 31, 2012 3:27 am
It is strange that Muslims are speaking of human rights when most Islamic countries are ruled by dictators and a very few respect the rights of non Muslims. Hypocrites I would say. Pakistan cannot even protect the rights of Shias and Ahmedis, yet alone non muslims. Pakistanis love talking about other nations that violate Muslim rights
Ikram Ullah (@ikramilluminati)
November 1, 2012 7:34 am
Here are a few to support my statements. http://www.aljazeera.com/programmes/insidestoryamericas/2012/01/201211171414173881.html http://www.aljazeera.com/indepth/opinion/2011/11/20111198958893651.html
October 31, 2012 9:13 pm
Two wrongs cannot make one right
Khan Bhadur
October 31, 2012 3:32 am
In slightly more progressive (sic) Islamic countries, that would a firing squad, instead of a stoning mob.
October 31, 2012 12:16 am
You don't know your Geneva conventions. Suggest you read up first before making silly comments.
October 30, 2012 8:09 pm
They demand a treatment in the name of humanity when what they did and follow was the worst crime against humanity. They are lucky to be alive after the crimes they committed.
October 30, 2012 2:21 pm
Look at the picture 9 armed soldiers around one prisoner in a well guarded prison from outside........ NO FURTHER COMMENT.
October 31, 2012 5:53 pm
US is a dehumanizing country. Muslims should not visit/immigrate to US. Those who are in US should leave to avoid dehumanization.
November 1, 2012 2:36 am
Do you personally know they actually commited all these crimes they are accused of? Notice that even the US government calls them “suspected” terrorists.
November 1, 2012 2:32 am
So i am guessing there's no unfair behavior whatsoever with anyone, ever, whereever you're from??
November 1, 2012 2:33 am
Do you personally know they actually commited all these crimes they are accused of? Notice that even the US government calls them "suspected" terrorists.
October 30, 2012 2:29 pm
Only the US keeps the world safe from fanatical terrorists. If not for Gitmo, US would hv been like Pakistan with dozens dying in the streets, mosques, Fridays etc.
November 1, 2012 7:24 am
Some extremely cruel comments here could only have been made by those who do not know of the horrors that have been commited there. Makes me so very sad for humanity and what man does to man and then makes such remarks. May God have mercy.
October 31, 2012 12:48 am
Two things are applied at gitmo.Americans fearful of these detainees. Or they are too arrogant as thinking of themselves as superpower who can violate all laws of justice and fairness
andy fr dc
October 30, 2012 11:50 am
Under the 1948 Geneva convention the USA is entitled to execute these prisoners upon capture. That was the right response. It should have been done. Treating these terrorists with respect and kindness is an error.
October 30, 2012 4:49 pm
they drag you if you dont walk straight !!!
akil akhtar
October 31, 2012 11:33 pm
There has been no trial to prove that.......They were just picked from teh streets of Pakistan and Afghanistan......
October 30, 2012 11:42 am
the plight of the prisoners in Indian and Pakistani jails and the torture methods are much much more pathetic.I was held up in a local police station and how they talk and treat you is unimaginable.The power from the local police constable to the top brass is brutal.That is no excuse,the detainees at guantanamo bay should get a fair trial.
andy fr dc
October 31, 2012 3:07 pm
Dear Humanist: Sure. See Article 4, Para "A" of " Geneva Convention Relative to the treatment of Prisoner of War" of 12 August 1948.Definition of POWs. A Humanist in Pakistan ? Good luck with that.
October 30, 2012 12:16 pm
Guilty until proven innocent
andy fr dc
October 31, 2012 2:57 pm
Under the Geneva Convention prisoner takes in UNIFORM are accorded the rights of POWs. A mere armband is sufficient to meet this standard. . Given that the Taliban murder all Americans they get a hold of , this is not likely to matter much.
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