Guantanamo, an affront to universal criminal justice
Until September 11, 2001, that is, until the brutal and cowardly terrorist attack by a group of radical Muslims strong > against the continental United States of America and its people; fact recognized worldwide as the attack and complete destruction, with thousands of innocent deaths, against the “Twin Towers”, located in the lower part of Wall Street, Manhattan, New York, “GTMO” was simply the acronym for the United States Naval Base at Guantanamo Bay, Republic of Cuba, which despite supposedly it is sovereign< /strong> territory of the Cuban State it has been, since February 23, 1903, as a consequence of the then Cuban gratitude for the North American contribution to the victory of the War of Independence against Spain, under A regime of “perpetual lease” by the Cuban-American Treaty signed on that date by the first President of Cuba, D. Tomás Estrada Palma.
From then on, and still today despite the promise to “close it down” made by President Obama arriving at the White House, GTMO (Guantanamo), is fundamentally and still today, a Military Prison for Terrorists; one of the 14 dependent territories but not incorporated into the United States and, therefore, where the American law and jurisprudence understand them!, >are not mandatory…and, therefore, where prisoners of war can be tortured…
The association of American criminal lawyers to which I have belonged for years, the NACDL (“National Assn. . . of Criminal Defense Lawyers”) has been staunchly defending that human rights are also respected at GETMO and that detainees have the minimum and necessary rights of defense under the norms of international and United States law (“Rule of Law”).
A brave and dedicated group of NACDL Criminal Lawyers, including my friend and former NACDL President, Nancy Hollander, have for years have been defending “pro bono” and against all odds the prisoners of GTMO despite the immense difficulties and limitations of all kinds that have been imposed on them, having achieved, only thanks to their tireless effort, some unique and rare acquisitions and releases from the extracontinental military prison.
This summer, on July 28, 2018, the NACDL invited you to participate in its Annual Congress, as guest of honor, to United States Brigadier General John G. Baker, Team Leader of Defense of the Military Commissions (“Chief Defense Counsel for the Military Commissions, MCDO), who generously accepting the invitation, also addressed all attendees with enormously courageous and illustrative statements in favor of the < strong>universal prevalence of the rule of law and against torture; Due to his importance of him and the personal experience he had in GTMO, I will try to summarize as follows: p>
- The often very complicated, arduous and difficult work of Defense Lawyers DOES matter and DOES make a difference in Criminal Justice, even in the Military Criminal Court. And this must be instilled in Law students as an indelible “mantra” for success in their professional practice.
- The Right to Defense and Assistance by a Lawyer is a fundamental, necessary and irreducible principle in every Nation that considers itself civilized and democratic.
- The Defense Lawyer to fully fulfill his role must be willing to be very demanding, persevering, insistent, studious, meticulous, daring, solitary and even irreverent, renegade, hated and despised by the constituted Power, whatever its nature, including judicial or fiscal.
- When the Defense Lawyer complies with his function of protecting his Client in Criminal Justice, he also complies as patriot, although this < strong>DO NOT like those who symbolically intend to hoist that sentiment for their particular interests…
- The defense of the Rule of Law, NOT can be annihilated and ignored, not even in a US military territory, with tactics of pressure and torture totally inadmissible in the rest of the US territory, under the flimsy excuse that GTMO is, simply, an “America Battle Laboratory”…
- The way in which the GTMO the Military Commissions Defense Organization (MCDO) has acted, as if it were a < em>“experiment”, –to the full and absolute exclusion of Defense Organization Lawyers—has been a “national disgrace”< /em>, as Brigadier General Baker has apostilled. The degree of extreme secrecy and impunity with which it has operated, for reasons of supposed “national security< em>”, has reached inconceivable and alarming extremes… especially in cases of torture of detainees-prisoners.
- The Chief Prosecutor of the MCDO explicitly threatened the Defense Attorneys with prosecution for contempt if they continued to investigate the cases through channels independent of the official investigations of the Prosecutor’s Office…
- It is publicly known, despite the resistance to its knowledge by the authorities, that specifically the prisoner in Guantanamo Khalid Shaykh Mohammad was tortured by successive drowning ( “waterbording”) and that others were subjected to other torture consisting of anal rape, euphemistically referred to as “anal rehydration”…
- It is also publicly known that the CIA systematically tortured detainees using sleep deprivation techniques; techniques of subjection to infernal noises, leaving them standing naked clinging to the cold, and remaining in contact with their own feces until pieces of skin fell off… Specifically at the beginning of July 2018, the government finally declassified the torture inflicted by these methods and others similar to the detainee imprisoned Amar al Baluchi.
- The sacred principle of international criminal law of privileged and secret communication between Defense Attorney-Client has also been systematically ignored and rejected in favor of the so-called “Gtmo Experiment”, inflicting a severe blow to the credibility of the American judicial system.
- The reality is that, as a consequence of the foregoing, the detainees-prisoners lost all confidence in the impartiality of their own Defense Attorneys, refusing to communicate with them and annihilating the very system on which Criminal Defense is based within a Rule of Law. Very recently, in March 2018, the Government publicly admitted that there were hidden microphones in the Attorney-Client communication booths in Gtmo.
Finally, in the course of his last words, Brigadier General BAKER, recounted how members of the FBI in 2014 they appeared at the home of a member of the MCDO Staff, convincing him to sign a contract as a “confidant” and consequently illegally obtain confidential legal information on the cases pending trial
Brigadier General BAKER, according to his own published account, also suffered the unrestrained fury of the Military Prosecutor’s Office when he supported the privileged communication rights of a renowned Criminal Lawyer, Rick Hammen, who defended a case of death penalty for his client, an inmate in Gtmo, Al-Nashiri. Due to his dignified attitude and his opposition to the unjust judicial ruling, he was sentenced by the Military Judge for the crime of contempt and confined for 21 days in a military prison; condemnation decision that finally appealed with the NACDL lawyers and revoked with the corresponding acquittal, as was clearly evident justice.
Brigadier General John G. Baker in his conference made it very clear that absolutely everything he said was exclusively his personal opinions and experiences,< /strong> completely unrelated, obviously, to those that the US Department of Defense and Federal Investigative Agencies could have, stressing once again, as a conclusion >, that Criminal Defense DOES matter!.