Our Own Nuremberg Trials

In 2007, the 'reality show' of the American rule of law, for the world to see.

By Nat Hentoff

12/19/06 "Village Voice" -- -- During the mutual-admiration hearing before the Senate Committee on Armed Services—which led to the unanimous confirmation of former CIA chief Robert Gates to be Donald Rumsfeld's successor—no senator asked Gates if he approves of the Pentagon's "extreme . . . emergency" insistence on a $125 million appropriation to construct a permanent compound for a war-crimes court at Guantánamo. There, in 2007, war-crimes trials will be held for dozens of Guantánamo "detainees." The facilities will accommodate simultaneous proceedings.

Unlike the Nuremberg war-crimes trials of the Nazis, there will be no government officials in the dock, but rather—as detailed in my last column—prisoners against whom the United States has itself committed war crimes under the Geneva Conventions and our own War Crimes act. These crimes include their conditions of confinement and a total lack of the due process that the Supreme Court ordered in Rasul v. Bush (2004) and Hamdan v. Rumsfeld (2006).

Each of the defendants will have already been designated as an "enemy combatant" by previous "administrative" Combatant Status Review Tribunals at Guantánamo. At these sham hearings they were presumed guilty before any of the "evidence" against them (which they were not permitted to see) was aired. That means the presumption of guilt will continue at the war-crimes trials.

The world will watch the total transmogrification of America's much self-praised "rule of law." There are objections to this rush for funds to house the American Nuremberg trials. On December 3, Republican congressman James Walsh, chair of the House Appropriations Subcommittee on Military Quality of Life and Veterans Affairs, and Related Agencies—which is in charge of military construction projects—refused to authorize the Pentagon's "national security" appropriation.

Walsh is angry at the absence of any public debate on this expenditure and, he cogently adds, "The issue of the tribunals is very controversial. For them to move this fast makes me wonder why."

Congressman Walsh will no longer chair that crucial committee in January. But in view of the Democratic congressional leadership's enveloping embrace of the new defense secretary, Robert Gates, will lawmakers prevent him from going ahead with the compound at Guantánamo? And if the Democrats hold up the appropriation, will Gates proceed with the trials in more cramped quarters? (On December 10, the Pentagon suddenly postponed its proposal—leaving it to be decided by the next Congress.)

Our rampant lawlessness during the past four years at Guantánamo has long been "controversial" in the international press and among human rights groups. But the extent and depth of our abuse of these prisoners—resulting in a number of desperation suicides—have been illuminated with damning clarity in a series of reports by New Jersey's Seton Hall University School of Law, the most recent of which, "No-Hearing Hearings," [PDF] I reported on last week.

The Seton Hall revelations have reached beyond the metropolitan press to, for example, the Anniston Star in Alabama. A December 1 editorial, "The Gitmo Games," quotes from the Seton Hall findings, and concludes:

"The military is holding something less than a kangaroo court that results in putting people away—without charging them with any specific wrongdoing—for an indefinite period of time . . . History will be very unkind to the rulers who constructed this very unjust, un-American system.

"Those un-American rulers, of course, include George W. Bush, Dick Cheney, John Ashcroft and Alberto Gonzales, a coven of lawyers at the Defense Department and the White House, and Donald Rumsfeld. Will Robert Gates take his place among them?"

The Anniston Star's indictment-editorial ends: "[History] also will be unkind to people who tolerated [this un-American system.]" That means us.

A Seton Hall Law School report from February 8, which I did not cite last week, by professor Mark Denbeaux and Joshua Denbeaux and law students at this exemplary school, presents the case against the United States in anticipation of the war-crimes trials at Guantánamo next year. "A Profile of 517 Detainees Through Analysis of Department of Defense Data" provides "a window into the Government's detaining only those the President has called 'the worst of the worst.' " You can now determine for yourself how dangerous the great majority of the defendants are in the forthcoming American Nuremberg trials:

"Only 8 percent of the detainees were characterized as al Qaeda fighters. Of the remaining detainees, 40 percent have no definitive connection with al Qaeda at all and 18 percent have no definitive affiliation with either al Qaeda or the Taliban."

The report continues: "The Government has detained numerous persons based on mere affiliations with a large number of groups that are, in fact, not on the Department of Homeland Security terrorist watchlist . . . A large majority—60 percent—are detained merely because they are 'associated with' a group or groups the Government asserts are terrorist organizations. (And members of almost 72 percent of those groups are allowed into the U.S.)"

Remember, these findings are based entirely on Department of Defense records. (Robert Gates can fact-check them.) Also, among "the worst of the worst":

"Only 5 percent of the detainees were captured by United States forces. Eighty-six percent of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86 percent of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time when the United States offered large bounties for capture of suspected enemies." No questions asked.

Remember, too, that in the 2006 Military Commissions Act, Congress stripped from all these prisoners any meaningful right to utilize our federal courts, thereby defying our own Supreme Court.

Co-author Joshua Denbeaux tells me: "The government's own documents proved that the government's claims that the prisoners were the 'worst of the worst' was a false and shameful public relations ploy . . . We hope that our reports will convince Congress to amend the Military Commissions Act and restore federal jurisdiction." If that happens, the prisoners could contest their conditions of confinement, their imprisonment, and their sentences.

Should the new Democrat-controlled Congress not do that, the American Nuremberg trials could begin—and later, the defendants' last resort may be the John Roberts Supreme Court. But however Congress or the high court eventually decides, we will again be disgraced around the world.

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