In Beach, civilian, military lawyers debate on Gitmo

VIRGINIA BEACH

If the U.S. government had decided to treat detainees held at Guantanamo Bay the way it did enemy soldiers during World War II - hold them as prisoners of war until the conflict ends - there wouldn't be any dispute about the military-run prison camp.

The government didn't, of course. The facility at Guantanamo Bay is seven years old and still the subject of passionate debate.

Its existence, and cloudy future, was the topic of a Virginia Bar Association Conference discussion on Friday.

"From Guantanamo to Abu Ghraib - The changing landscape of detention and prosecution," featured six panelists addressing the merits and flaws of the Bush and Obama administrations' policies toward detainees.

The six included civilian and military lawyers who have prosecuted and defended terrorist suspects, as well as a woman whose sister died in the World Trade Center attack.

Retired Brig. Gen. Thomas Hemingway, who served from 2003 through 2007 as legal advise r for the Office of Military Commissions, began by saying Guantanamo inmates should have had their status reviewed while they were still in theater, not months or years after arriving in Cuba.

Hemingway said military leaders in both the U.S. Central Command and Southern Command asked to do Article 5 tribunals after capturing suspects on the battlefield, but the Bush administration refused. Article 5 refers to part of the Geneva Convention, which governs the treatment of prisoners of war.

The general's job was reviewing cases against detainees and determining which to prosecute.

Hemingway said military commissions run by the United States after World War II were not good examples of prosecuting enemy combatants.

More than 5,000 military commissions were held in the American sector of Germany, he said. Defendants didn't have the right to not incriminate themselves, and rulings could not be appealed. Many people found guilty were executed within 60 minutes of the verdict, he said.

"That is not the kind of appellate review that most people expect today," he said.

Hemingway emphasized that he did not condone torture at Guantanamo and said he refused to prosecute cases against detainees based on evidence obtained through torture.

But he said he doesn't think that detainees who may have been tortured should be immune from prosecution. If the government can make its case without relying on tainted evidence, he said, it should proceed.

Hemingway said people calling for the military to "try or release" the suspects at Guantanamo lack understanding of the Geneva Convention and laws of war.

While U.S. prisoners of war were held captive in Vietnam, "the U.S. government never said, 'Try them or release them,' " Hemingway noted. Instead, it called for them to be treated humanely, following international law.

One improvement President Barack Obama's administration should make to the process is not allowing terrorism defendants to plead guilty to capital charges, he said. Many al-

Qaida suspects want only to be put to death to become martyrs, he said. A better punishment for those convicted on a serious terrorism charge, he said: life in prison.

Maj. Dan Cowhig, an Army prosecutor who tried a detainee alleged to be Osama bin Laden's secretary and a chief propagandist, agreed.

Ali Hamza al Bahlul is one of just two detainees fully prosecuted through the military commission system. He was sentenced to life in prison.

"He was disappointed he wasn't tried on capital charges," Cowhig said.

Edward MacMahon provided insight on the other end of the process - defending detainees. McMahon served as lawyer to Zacarias Moussaoui, convicted in federal court of crimes related to the Sept. 11 attacks. He is also representing Walid Muhammad Sahil Mubarek bin 'Atash, a Sept. 11 defendant at Guantanamo.

MacMahon pointed out the bizarre conditions at Guantanamo. Perhaps symbolically, the court building has no jury room for deliberations.

It also separates almost everyone involved with the process, he said, and spectators hear testimony after a brief delay - in case the minder of an "other government agency" believes it is classified. (Those "OGA" folks are thought to be CIA or NSA, though it's illegal to reveal specifics, he said.)

To halt the proceedings, a minder raises his hand. A court worker then hits a button that turns out the lights and cuts the audio system.

That happened once during a hearing for Khalid Sheik Mohammed, he said - when the al-Qai da operative mentioned Richard Nixon.

"I don't know if there was a relationship there," he joked.

Robust legal safeguards for detainees shouldn't be provided out of sympathy, MacMahon said - they should be insisted upon because that's what our values are.

William F. Gould, a lawyer based in Charlottesville, was the final attorney to address the group.

He started with a clip from the television show "24," showing character Jack Bauer admitting to a Senate panel that he tortured someone in order to prevent a bus- load of children from being blown up.

"I love '24,' " Gould said. "But it ought not be determining our national policy."

Gould is co-counsel on multiple lawsuits filed by Iraqis claiming they were tortured by U.S. civilian contractors while detained at Abu Ghraib. U.S. military abuses came to light in 2004 through photographs of inmates being subjected to degrading treatment and being threatened by dogs.

The clients were eventually released, sometimes months later, without being charged.

They lied to try to stop the abuse. What did you tell them when you were tortured, Gould asked his clients?

One responded: "I told them I was a terrorist. I told them I knew Osama bin Laden."

Kate Wiltrout, (757) 446-2629, kate.wiltrout@pilotonline.com