Guantanamo trials 'completely illegal'
The World Today - Tuesday, 24 August , 2004
Reporter: Eleanor Hall
ELEANOR HALL: As we've been hearing the Australian Government says its
confident the special military tribunal set up to try David Hicks will be
But a New York lawyer who represented Guantanamo detainees in the Supreme
Court earlier this year is scathing of the military tribunal system.
Attorney, Michael Ratner, is President of the Centre for Constitutional Rights
in New York and earlier today I asked him about the pending military
MICHAEL RATNER: It's my view now that these are completely illegal, both under
our domestic law as well as under international law. So unusual would be an
understatement. They're not just unusual but as many of us have said
they're unfair as well.
ELEANOR HALL: The Australian Government though says it's been assured that the
trial procedures being used for David Hicks are based on fundamental
principals of justice like the presumption of innocence and proof beyond
MICHAEL RATNER: Yeah, I find their position really remarkable and completely
unjustified. I mean, we have to start with the idea that first the President
designates who is going to be tried. The President then appoints the military
prosecutors. He then appoints the military judges. There's no appeal from
these tribunals and they allow all kinds of evidence in. Even coerced
evidence. So there's nothing fair about this. There's nothing that resembles
justice. It's really inexcusable to me that any government that would call
itself civilised at this point would support these kind of tribunals.
ELEANOR HALL: Now, you mentioned that there are questions about whether
evidence obtained under coercion will be admissible. How does this compare to
rules of evidence in say a murder trial?
MICHAEL RATNER: Well, in murder trials, coerced evidence cannot be used. If
the government hasn't given you an attorney, it's assumed that the statement
is coerced. If they've obviously been kept in detention for two and a half
years and not only subject to very, wildly coercive tactics including possibly
torture whether in David's case or in the people who might be used as
witnesses against him. And when I say people as witnesses against him, another
real problem with these tribunals is that they can be trials by affidavit. So
if there's a witness that says David did something, they can put in his
statement, and you can't cross-examine the person, and they then come in and
say national security you can't cross-examine him. So the Bush
administration here is not going to even allow David Hicks' lawyers to
examine, as far as I know, a number of the witnesses here.
ELEANOR HALL: So these witnesses will be testifying anonymously will they?
MICHAEL RATNER: Well, testifying would be an exaggerated word I'm afraid. It
may be that a lot of these people come in simply by an affidavit or a paper
and there's nothing much you can do. So not only could there be anonymous
witnesses there could be no witnesses at all other than the statements
given to army investigators again, without knowing the circumstances that
those statements were given could very well have been coercive, in fact in
the case of Guantanamo where the coercion has been rampant.
ELEANOR HALL: So how will David Hicks' lawyers mount a defence?
MICHAEL RATNER: Well, for starters, just two things about David Hicks'
lawyers. Apart from the overall rules that have made these tribunals very
unfair, the actual treatment right now of the lawyers and others who are
trying to defend David Hicks and the others, has been completely unfair.
They're not getting access to the discovery they need. They're not getting
enough money to go travel to Afghanistan and actually interview witnesses. So
there's a whole series of motions that have to be decided over the next couple
of months of arguments that the lawyers are going to make that they
haven't been provided with the information that they need. So that's one real
downer. The second thing is, the US Government doesn't pay anything for the
civilian lawyers. His military lawyer, Colonel Michael Mori, is an excellent
lawyer has been objecting to these, and people should understand, this is
a colonel major actually, Major Michael Mori a major in the US
military and he himself has said that these are unfair tribunals, that they
have no place in the justice system and that these people should be tried
if at all by courts martials.
ELEANOR HALL: Now you also said that there's no appeal process. To what extent
is that a concern?
MICHAEL RATNER: Well it's illegal under the Geneva Convention as well as under
our domestic law. The idea that I mean, they would say, the government
might argue, the Bush administration, that there's an appeal process. But it's
only an appeal essentially within the military system to a panel, and then to
the Secretary of Defence, Donald Rumsfeld or his designee. There's no court
appeal. So what we've done in these cases and what the lawyers have done, is
they've immediately tried to take these cases into out federal courts in the
United States, much like we took the original habeas corpus or petitions in
the early days into US federal courts, to try and challenge these illegal
procedures. My prediction is in the end, that none of this will hold up, that
these will be thrown out, these will be seen for what they are an utter
and complete sham.
ELEANOR HALL: What about the argument that special rules are needed in special
circumstances like terrorist enemy combatants?
MICHAEL RATNER: My view is that fundamental human rights and civil rights
don't depend on circumstances. In fact, they're made for very difficult
situations. They're made for situations like this, and we haven't really
insisted and that was interesting in the Supreme Court opinion that
since 1215, since the Magna Carta which was signed in 1215 and the court sited
that in the Supreme Court decision, that you're required to have fair
procedures and fair hearings and the rule of law. You're not supposed to set
up special ad hoc tribunals that are geared to prosecution, geared to
conviction to suit the circumstances. That's very, very unfortunate here.
These are just flatly, something I never would have expected to see in my 30
years of law practice.
ELEANOR HALL: Michael Ratner is President of the Centre for Constitutional
Rights in New York, and he was speaking to me from there earlier today.