According to Glenn Greenwald, the point of Wikileaks is to expose injustice perpetrated by the world's most powerful leaders in a secretive and non transparent manner. Here is something that caught my eye:
In a cable from the Embassy in September 2009, Anne Patterson expresses concern over the Pakistani Military's extra judicial execution of suspected militants which gives the institution a bad name. She is also concerned that if detainees are handed over to the civilian courts and formally charged, they will be released. So her solution is the creation of a parallel administrative track (PAT) or court system to try suspected militants with the help of American military lawyers. Here is the relevant portion:
Offer Assistance: Coordinate with the British High
Commission on an offer of assistance to the Defense Minister
and the Chief of Army Staff (COAS). To the Defense Minister
propose assistance in drafting a new Presidential Order that
would create a parallel administrative track for charging and
sentencing terrorists detained by the military in combat
operations. Amendments to the Anti-Terrorism Act are already
well underway. To the COAS, propose bringing over a team of
American and British experts to evaluate the detainee issue
and to determine jointly what assistance is required from
coalition partners. If COAS agreement is forthcoming, bring
over a team of American military lawyers to meet with
Pakistan military officials with a view to obtaining
concurrence on training in battlefield evidence collection,
investigation and prosecution of human rights abuses by
military personnel, and assistance on drafting the new
Presidential Order proposed to the Defense Minister:
Timeline: Meeting with COAS and Defense Minister by end of
September 09. Team deployed by October 09. Funding:
Reallocation of existing Foreign Assistance funding
Let's pretend that this war does not make a mockery of the human rights conventions and systems placed since 1948 to avoid violations of immense proportion both in war and times of peace. Let's pretend we aim to achieve due process and human rights for all, even if as a façade.
What this translates to is: Why kill them extra judicially in open view and bring our joint operation shame when you can get a hastily constituted (extra judicial and extra legal) court to sanction the killing, and then under the guise of a forced and artificial legality, execute away. If challenged, you can argue they were given due process of law.
Here are some of the specific concerns we should have about this parallel court system. Ironically, aid money will be used. Only the most unfortunate people of the world get financial assistance so that their own rights may be violated. This is Pakistan completed disconnected from its leadership, and disempowered.
Tweak the system - get it approved through Zardari and Kayani
To endorse our burgeoning democracy, shouldn't Parliament be allowed to enact legislation for PAT courts? Why is it the president whose complying nature has already been exposed and verified by other cables? And why is it the COAS, Kayani, the smoking, mumbling general, whose obligatory performance for the U.S. has also been established? Shouldn't there be parliamentary oversight on such an important institution that will try 5,000 or more militant prisoners?
If its illegal in the U.S., bring it to Pakistan, no one will even know
Courts such as these that Patterson seeks to institute in Pakistan have already been challenged and deemed illegal in the U.S. In Hamdan v Rumsfeld (2006), the U.S. Supreme Court found that military commissions set up by Bush to try Guantanamo detainees violated the Geneva Conventions as these took away several procedural protections. The accused could be forbidden to view certain evidence -- any probative evidence could be admitted, including hearsay and statements gathered through torture. In addition appeals the Executive Branch had the right to hear appeals not courts. Such protections are provided by the Conventions and certainly by ordinary rules of evidence. Defence must have access to all evidence used to convict in order for the suspect to adequately prepare his or her defense. This is fundamental to a fair trial. Anything short of it is profoundly prejudicial to the suspect, and renders the whole legal process a sham - especially one where death sentences may be carried out.
Who cares about evidence if you have trash bags full of probative, well, trash? And whoever heard of appeals for militants?
What rules of evidence will apply in such PAT courts in Pakistan? Will the detainees have access to lawyers and will they be able to examine all evidence and test for veracity and weight? Will meaningful appeals be allowed? Capt. Pat McCarthy, the U.S. government's lead counsel at Guantanamo, describes the haste with which evidence was collected against Guantanamo detainees. He admitted that such evidence would never be admissible in a federal court to secure a conviction. "We had to grab as much stuff as we could. So what you have is large green trash bags full of computers, full of weapons, full of letters, you have all of that sort of thing."
Who else will train us? The extra judicious American military lawyer?
These lawyers will provide on the ground training and concurrence. Now these are the same military lawyers who defended the system at Guantanamo and said it was necessary because the federal court system in America was simply not suited to handle the legal issues that arise in a war with an enemy like al Qaeda. Are we going to be parroting an extra legal system such as Guantanamo and its military commissions? Shouldn't the team that will train locals also include lawyers from the civilian world - more importantly - if you really embraced justice - how about some ACLU, CCR, HRW, Amnesty and local HRCP lawyers?
It's like history repeating itself all over again
Amendments to the Anti-Terrorism Act are already under-way? What are these changes being proposed and do they give the state wide and arbitrary powers? (1) In the 2008 decision of Boumediene , the United States Supreme court found that certain provisions of the Military Commissions Act (2006) violated the constitution and that detainees had the right to habeas corpus - and could challenge their detention through this ancient writ. In 2006, Congress enacted the MCA to create a special legal system for detainees, denied them the right to impartial hearings, proper legal representation and the ability to hear all the evidence. The MCA was illegal, as held by the apex U.S. court, as it stripped away fundamental rights. What makes you think the new ATA will be any better? At first glance, it is a terrible law that mirrors MCA in many respects and curtails due process of the law.
I have two words for you, Anne. Habeas Corpus!
Apparently the Anti-terrorism Bill 2010 gives the government sweeping powers in apprehending and detaining suspects. A number of broad surveillance techniques are permissible, and suspects can be held for up to 90 days without being able to challenge their detention in any court. Also, interviews by the district police will be admissible in court despite common knowledge that these police officers employ torture to coerce confessions. People found with explosives will be presumed guilty. This really is an awful bill. It does not pass constitutional muster and denies basic rights to liberty and a fair trial.