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Battle of the Prosecutors

By       Message WILLIAM FISHER     Permalink
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A Florida congressman is hoping to drive the last nail into the coffin of the U.S. justice system for Guantanamo detainees.

Republican Representative Tom Rooney, a former military prosecutor, this week introduced a bill mandating that the detention facility at Guantanamo Bay, Cuba, "remains open indefinitely" and requiring that "individuals detained at the facility be tried only by Military Commission."

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But other former military prosecutors think Rooney's position would be a mistake of epic proportions.

Rooney's "Detainee Trials at Gitmo Act" would require all detainees currently held at Guantanamo Bay to be tried in the courtroom facility constructed at Guantanamo Bay.

In a statement, Rep. Rooney said, "Military commissions are fair and provide due process for the accused, but they also protect critical intelligence officials and evidence.

The Congressman, a former constitutional law professor at West Point, said,   "Foreign terrorists should absolutely not receive the same rights and privileges as American citizens do."

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He added that the recent trial of Ahmed Khalfan Ghailani, who was acquitted on more than 280 counts, including murder,   "highlights the flaws with the Administration's strategy of giving detainees civilian trials."

Ghailani, who was tried in Federal Court in downtown Manhattan, was convicted on one count of conspiracy and faces a mandatory 20-years-to-life sentence.

But Congressman Rooney believes that the "Constitutional and legal standards for evidence-gathering and prosecution in a civilian case are simply not adequate for the trial of an enemy combatant."

He adds, "As a former military prosecutor, I strongly believe that trying detainees in military tribunals at Guantanamo Bay is the best way to hold terrorists accountable, keep them out of the United States, and prevent them from rejoining the fight."

But other former military prosecutors take starkly different positions.  

One of them is David Frakt, who, in 2008, challenged the role of chief prosecutor Brigadier General Thomas W. Hartmann in choosing his client, Mohammed Jawad, for trial. Frakt argued that Hartmann had "...exercised unlawful command influence. Challenging that unlawful influence, Frakt charged that the Prosecution had failed to release important records to the Defense, and that this showed that the process through which Jawad was charged was rushed and without proper preparation.

Frakt also claimed that Jawad had been subjected to: "...pointless and sadistic treatment [in a] bleak underworld of barbarism and cruelty, of anything goes, of torture."

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Frakt told The Public Record, "It is shameful that some members of Congress are trying to hamstring the President and Attorney General and substitute their judgment for that of the Executive Branch as to what is the appropriate place to try a criminal case, without any knowledge of the specific facts and circumstances of each case, or the evidence available."

He said Rooney's act "also shows the extreme hypocrisy of many members of Congress, who will claim one moment that the Military Commissions are virtually identical in all important respects to federal criminal courts and courts-martial, capable of providing full, fair trials consistent with American ideals of justice and due process, then insist on trials in military commissions for the sole reasons that they clearly believe that convictions are more likely to be obtained on tainted evidence in a military commission than in federal court."

He added that the "protection of critical evidence is a massive red herring.   The procedures in place in the Military Commissions to protect classified evidence are modeled on, and virtually identical to, the Classified Information Procedures Act in place in federal court."

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William Fisher has managed economic development programs in the Middle East and elsewhere for the US State Department and the US Agency for International Development. He served in the international affairs area in the Kennedy Administration and now (more...)

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