Death Penalty

"No right way to do the wrong thing" is an old saying; a Google search doesn't shed much light on its origins, although one website suggests that "no right way to do a wrong thing" is an old Turkish proverb.  One of its most recent incarnations is in a Toby Keith song, entitled "Ain't No Right Way".  The "wrong things" in this case are single motherhood, child abuse and banning school prayer. 

Now, while this set of "wrong things" (or at least some of them) may be controversial, what is not, or should not be controversial, is that executing someone after a blatantly unfair trial is a "wrong thing."  That's why, following the chaotic arraignment in Guantanamo of Khalid Sheikh Mohammed and the 4 others charged with involvement in the 9/11 attacks, the chief of US military defense lawyers for the military commissions told a press conference that there "ain't no right way to do a wrong thing." 

He may have been quoting Toby Keith slightly out of context, but he is absolutely correct.  Bringing anyone to trial, and seeking the death penalty, in a system as fundamentally flawed as the current military commissions is simply, extremely wrong.   As Amnesty International, which had an observer at the June 5 proceedings, concluded in its June 6 report "The Show Trial Begins":

"The military commissions are designed to facilitate the conviction and even execution of foreign nationals designated as ‘enemy combatants' by the US military, as well as their continued detention in the event of acquittal, while keeping secret the intelligence methods used by the USA. Torture, enforced disappearances, and secret detention have been among these methods. Crimes by non-state actors have been met with crimes by state officials in the ‘war on terror', and the government has developed a detention and trial system that may whitewash the abuses from its side of the ledger. For justice read injustice."

On Monday, the UN Special Rapporteur on Extrajudicial, Summary and Arbitrary Executions issued a statement in which (in addition to talking about the death penalty in Alabama and Texas) he stated flatly of the military commissions that:  "these trials utterly fail to meet the basic due process standards required for a fair trial under international humanitarian and human rights law".   He also called the commissions a "gross violation of the right to a fair trial." And he added that, "It would violate international law to execute someone following this kind of proceeding."

Undeterred, that same day the US Department of Defense announced it was filing capital charges against another Guantanamo prisoner, ‘Abd al-Rahim al-Nashiri, a Saudi Arabian national who was held incommunicado in secret prisons for almost 4 years, and who, according to a CIA admission in February, was "waterboarded" during the course of his interrogation.  He is charged with organizing the bombing of the USS Cole in Yemen in October 2000.  (Two other men have been indicted for involvement in this attack, but in a regular Federal court.  So, why not proceed the same way with al-Nashiri?)

According to Amnesty's July 2 report on the al-Nashiri charges:

"Detainees held by the USA in the name of counter-terrorism have had their right to the presumption of innocence systematically undermined by a pattern of official commentary on their presumed guilt. They have been subjected to enforced disappearance, secret detention and torture or other cruel, inhuman or degrading treatment, including in terms of the interrogation methods and detention conditions employed against them. Such abuses heighten the need for any trials to take place before courts independent of the executive and legislative branches which have authorized or condoned these human rights violations. Instead, trials are looming before military commissions lacking such independence and specifically tailored to tolerate government abuses, including by allowing the admission into evidence of information coerced under ill-treatment."

The Military Commissions set up to try Guantanamo prisoners are wrong, and there is simply no right way to conduct trials under a system so fundamentally unfair.   Carrying out executions after such unfair proceedings compounds, or multiplies the wrong.  But as the new Amnesty report also makes clear, there is a "right thing" (or several "right things") that can be done. 

The US government can abandon the military commissions.

The government can close Guantanamo as a first step to ending illegal detention.

The government can conduct these trials in the Federal courts, with the full fair trial protections required by US and international human rights law.

And the US can drop its pursuit of the death penalty once and for all.

Brian

DPAC