But many legal scholars argue that such evidence would amount to “fruit from the poisoned tree” -- by which evidence is inadmissible if it was generated from an unconstitutional or illegal act -- and could therefore not be used against the defendants.
Gabor Rona, International Legal Director for Human Rights First, an advocacy organization, told us, “Consider a confession by someone who has been detained without judicial process, held for years in near isolation, denied contact with family or legal counsel, subjected to prolonged interrogation under circumstances amounting to cruel, inhuman and degrading treatment or torture. Evidence gained under such circumstances cannot be used in a trial, according to both international and domestic law, and for good reason. The idea that this individual, while still in the custody of those same captors, can then be freshly interrogated without the use of coercive interrogation techniques in order to provide an untainted confession is absurd.”
He added, “To assert otherwise is to simply add to mounting evidence that the military commission process is neither designed to provide, nor is capable of providing, justice.”
Col. Davis also contends that the Hamdan incident was not the first time political pressures were applied to the Guantanamo trials process. He said that in March 2007 that senior officials pushed for a plea bargain for Guantanamo detainee David Hicks, dubbed the “Australian Taliban.” The plea allowed him to serve a nine-month sentence in his homeland for aiding the Taliban. Davis said the sentence was orchestrated to help Conservative Party Prime Minister John Howard of Australia, who sanding for reelection and was under domestic criticism for his support of U.S. policies. Hicks was recently released from an Australian prison. Howard lost his reelection bid.
Hamdan became part of U.S. judicial history when the Supreme Court found in his favor in 2006 that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling said Common Article 3 of the Third Geneva Convention was violated.
The case considered whether the U.S. Congress may pass legislation preventing the Supreme Court from hearing the case of an accused combatant before his military commission takes place, whether the special military commissions that had been set up violated federal law (including the Uniform Code of Military Justice and treaty obligations), and whether courts can enforce the articles of the 1949 Geneva Convention.
The court’s decision was a stunning rebuke to the Bush Administration. It led to Congress’ hurried enactment of the Military Commissions Act (MCA) of 2006, which set up new procedures and structures for bringing Guantanamo detainees to trial, and limited detainees’ access to habeas corpus. The MCA still faces court challenges as being unconstitutional.
The U.S. Government has called for the death penalty for the six “high value detainees,” who were transferred to Guantanamo from secret CIA prisons in Eastern Europe, where they were reportedly subjected to harsh interrogations. Those charged include Khalid Shaikh Mohammed, an alleged former senior aide to Osama bin Laden, who is said to have admitted to being the principal planner of the plot.
The U.S. currently holds about 275 men at Guantanamo and says it plans to prosecute approximately 80 before military commissions.
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