The Edmond Sun

March 12, 2013

AGAINST THE GRAIN: How will history perceive Guantanamo tribunals?

William F. O’Brien
Special to The Sun

OKLA. CITY — In 1991 people fleeing the Caribbean nation of Haiti and attempting to come to the U.S. often were intercepted on the sea and brought to the American military base on Guantanamo Bay in Cuba. They were held there until they could be returned to Haiti.

Some of them claimed they were mistreated by the U.S. Army personnel who ran the facilities that they were held in, and an activist law professor filed a suit on their behalf with the U.S. Supreme Court. That tribunal, by an 8-1 vote, ruled that since the Haitians  where not on U.S. soil they didn’t have the legal right to sue regarding the conditions under which they were held. As documented in the recently published “The Terror Courts, Rough Justice at Guantanamo Bay” by Jess Bravin, that decision prompted Bush Administration attorney John Yoo to suggest that prisoners taken in the U.S. war on terror be held at Guantanamo Bay so that they would not have access to American courts to protest their captivity.  

Yoo was a believer in “executive primacy” regarding the powers of the U.S. presidency and had written in numerous articles that the American chief executive had the inherent authority to ignore the Geneva Convention and other international conventions that the U.S. was a party to. And Bravin details that in the immediate aftermath of the Sept. 11 attacks on the U.S., with checkpoints in place in parts of Washington, D.C., Yoo’s position was embraced by the Bush Administration, and he helped to draft what was called a “military order” that was signed by President George W. Bush. That order authorized military trials for those foreign nationals in U.S. custody who were thought to have committed crimes against the U.S. While the order called for the trials to be “full and fair,” it specifically mandated that it was “not practicable” for them to follow “the principles of law and the rules of evidence.”

While traditional trials held under military authority in the U.S. had both a judge and jury, Bush’s military order authorized a “presiding officer” who would make findings of fact and law. There was no requirement that any of those involved in the trial be attorneys. In accordance with Yoo’s suggestion, those military tribunals were convened at Guantanamo Bay and many prisoners were transported there. The author reports on the harsh treatment that they received there that would not have been permissible if the prisoners had been afforded the protection of American law. While several aliens were convicted by those military courts, in late 2012 an appellate court reversed one of those convictions, and Bravin believes that the other convictions obtained will be overturned as well.   

While the Obama Administration initially planned to close Guantanamo, and bring the prisoners still held there to trial in federal courts on the mainland, the protests of many members of Congress, including some members of the Oklahoma delegation, resulted in that detention facility remaining open. The author concludes that the formation of the military courts at Guantanamo was a waste of time and money, and reminds us that several foreign terrorists were convicted in federal courts, including John Walker Lindh, before Bush issued his military order. He also believes the treatment those prisoners received at Guantanamo hurt America’s image across the world.

Last week, the Obama Administration indicated that Osama bin Laden’s son in law, Sulaiman Abu Ghaith, will be tried in federal court in New York City. It is possible that history will conclude that the   Bush Administration overreacted to the events of Sept. 11 when it created military tribunals at Guantanamo Bay.

WILLIAM F. O’BRIEN is an Oklahoma City attorney.