TOP LEGAL MILITARY OFFICER WOULD ALLOW EVIDENCE FROM WATERBOARDING

Who is this guy Air Force Brig. Gen. Thomas Hartmann who is overseeing the prosecutors in forthcoming cases at Guantanamo? He believes that the military tribunals should be able to introduce "evidence" obtained through waterboarding. Hasn't he ever heard of the Fifth Amendment to the Constitution barring the government from forcing an accused to testify against himself?

Josh White reports in today's The Washington Post:

"Air Force Brig. Gen. Thomas W. Hartmann, who oversees the prosecutors who will try the detainees at military commissions, said that while "torture" is illegal, he cannot say whether waterboarding violates the law. Nor would he say that such evidence would be barred at trial.

"If the evidence is reliable and probative, and the judge concludes that it is in the best interest of justice to introduce that evidence, ma'am, those are the rules we will follow," Hartmann said in response to questions from Sen. Dianne Feinstein (D-Calif.), at a Senate Judiciary subcommittee hearing.

The government and Hartmann will undoubtedly argue that the cases before the military tribunals are not "criminal" but arising from "warfare." And therefore the protections of the Constitution do not apply. Even if we grant the government's argument, which is not all that strong, what would it say about American justice to use evidence obtained from the rack and convict the accused on its basis. Most conservatives and some Republicans argue that the protections of Constitution do not apply to foreigners and certainly do not apply to foreigners "outside" of the United States. But this shows these persons to be mean-spirited and medieval.

It is not just because of the U.S. Constitution that we enjoy basic rights to life, liberty and the rule of law. It is because of these fundamental rights that the U.S. Constitution is what it is. First came these individual inalienable rights, then came the Constitution, not the other way around.

Shame on Gen. Hartmann for even considering allowing evidence obtained from torture or waterboarding. He reduces U.S. justice to the level of the Inquisition where people confessed to be consorts of the devil after being stretched and burnt on the rack.

GUANTANAMO JUDGE DENIES ACCUSED RIGHT TO CONFRONT WITNESSES

I thought an accused had a right to confront witnesses against him? This is what I learned in law school. Has the Sixth Amendment be abrogated? It sure seems that way when we hear that the Guantanamo Military Tribunal has warned defense lawyers not to disclose the names of prosecution witnesses in the case of Omar Ahmed Khadr, now 21 years old and on trial in Guantanamo for throwing grenades at U.S. soldiers in Afghanistan.

William Glaberson writes in today's The New York Times:

"Defense lawyers preparing for the war crimes trial of a 21-year-old Guantánamo detainee have been ordered by a military judge not to tell their client — or anyone else — the identity of witnesses against him, newly released documents show. . . .
"
Defense lawyers say military prosecutors have sought similar orders to keep the names of witnesses secret in other military commission cases, which have been a centerpiece of the Bush administration’s policies for detainees at Guantánamo Bay, Cuba.

"Some legal experts and defense lawyers said the judge’s order, issued on Oct. 15 without public disclosure, underscored the gap between military commission procedures and traditional American rules that the accused has a right to a public trial and to confront the witnesses against him."

The Sixth Amendment reads:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

By not allowing Ahmed Khadr the right to confront witnesses against is just plain unfair. There is no way he can get a fair trial or a fair verdict.

Preventing an accused from seeing and cross-examining prosecution witnesses harks back to the days of the Inquisition where the accused was presumed guilty even before a hearing and had to contend with facing trial where the church concealed the identity of those people making the accusation, usually about witchcraft or heresy.

I thought the French Enlightenment of the 18th Century put an end to the Inquisition and the irrational and unjust practices of kangaroo courts in modern societies. But I was wrong.

Writes Glaberson:

"Mr. Khadr’s military defense lawyer, Lt. Cmdr. William C. Kuebler of the Navy, said that while he has been given a list of prosecution witnesses, the judge’s decision requires him to keep secrets from his client and that he would ask Colonel Brownback to revoke the order. He said it treated Mr. Khadr as if he had already been convicted and deprived him of a trial at which the public could assess the evidence against him.

"“Instead of a presumption of innocence and of a public trial,” Commander Kuebler said, “we start with a presumption of guilt and of a secret trial.”"