December 12, 2007
A Gitmo Trial Beats Judgment At Nuremberg
By Audrey Hudson, Washington Times
Nearly 100 foreign enemy combatants to be tried at Guantanamo Bay will have more rights than Nazi war criminals who faced the Nuremberg tribunal, a Senate panel was told yesterday.
Detainees in the war on terror will have the presumption of innocence and an automatic appeal, the latter not even afforded to U.S. citizens, said Brig. Gen. Thomas W. Hartmann, legal adviser to the Convening Authority for the Office of Military Commissions.
"No such presumption existed," said Gen. Hartmann in reference to Nuremberg while speaking to the Senate Judiciary subcommittee on terrorism, technology and homeland security. "There were no rules of evidence, and virtually any evidence was freely admitted.
"That was painfully apparent to those who were found guilty and received the death penalty they were hung within hours and days of the completion of the sentence announcement," he said.
Steven A. Engel, Justice Department deputy assistant attorney general, said that extending the peacetime notion of habeas corpus to military prisoners would be "unprecedented."
"In the nearly 800 years of the writ's existence, no English or American court has ever granted habeas relief to alien enemy soldiers captured and detained during wartime," Mr. Engel said.
Sen. Benjamin L. Cardin, Maryland Democrat, disagreed with the federal officials and said "these individuals are basically criminals" and that criminals have the right to habeas corpus.
Last week, the Supreme Court heard arguments as to whether enemy combatants who are captured overseas are entitled to the same constitutional rights as U.S. citizens.
Lawyers representing those held at the Guantanamo Bay Naval Base say they should be granted a habeas corpus hearing in federal court.
Opponents say these new procedures set forth by Congress and the Bush administration for judicial review are sufficient.
"The rights that are provided under the Military Commissions Act and the Manual for Military Commissions are absolutely unprecedented in their generosity and benevolence to the
accused," Gen. Hartmann said.
Sen. Jeff Sessions, Alabama Republican, said Democrats might not be so hostile to holding the detainees at Guantanamo if those captured on the battlegrounds were targeting senators rather than the U.S. military.
"Frankly, I think this committee and this Congress needs to focus a little bit more on trying to protect our soldiers, protect our homeland, make sure that murderers, killers who are dedicated to the destruction of America are detained, rather than trying to see how many we can release," Mr. Sessions said.
Noting that nearly half of the detainees originally housed at the base in Cuba have been released, Sen. Richard J. Durbin, Illinois Democrat, pressed Gen. Hartmann on whether the remaining 300 detainees are criminals or innocent bystanders.
"Somewhere in your heart of hearts, in those dark moments at night when you reflect on what you do, have you thought perhaps we're doing this the wrong way; maybe we don't have the people who are most threatening to the United States," Mr. Durbin asked.
"In my heart of hearts, Senator," Gen. Hartmann responded. "I'm convinced we've got the right process with the military commissions. It is literally unprecedented the rights that we are making available to people we call alleged terrorists. Unprecedented."
Sen. Dianne Feinstein, California Democrat and subcommittee chairman, questioned whether the general was pressured by the convening authority to move quickly on cases because of upcoming elections.
"Absolutely not," Gen. Hartmann responded. "If there has been an effort to increase the speed of the trials, the effort to improve the performance, an effort to improve the execution in the trials process, it has been my effort, and no one has directed me in that regard."
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