Legal changes now permit the US military to act as judge, jury and executioner, writes Tom Clonan
This week's announcement by the Pentagon about seeking the death penalty in the case of six prisoners at Guantánamo Bay charged with involvement in the 9/11 attacks represents yet another step in a long-term planning process for executions at Camp Delta at the US naval station in Cuba.
US Army Regulation 190-55 has for some time allowed for military executions by lethal injection. Until recently, however, precedent within US martial law has identified Fort Leavenworth in Kansas as the location for military executions - a location which, in theory, would place the condemned prisoner within the jurisdiction of US federal law and all of its protections.
However, in January 2006, the US military code was amended to allow for "other locations" such as Guantánamo Bay to be selected as legitimate sites for the execution of those sentenced to death by military courts.
Under the revised military code, at paragraph seven, the US military's Provost Martial General (PMG) is authorised to contract "for the following services . . . (a) acquisition of lethal substance for lethal injection; (b) medical or other qualified personnel to insert intravenous needles into the condemned prisoner; and (c) personnel to administer the lethal substance".
In addition to this authority to contract these services to the US military, the PMG is now also authorised to conduct such executions, at the behest of the president of the United States and the secretary of the army, at Guantánamo Bay - outside of the jurisdiction of the US federal legal system. These are alarming developments when considered in light of this week's announcement by the US military that it is to act as judge, jury and potentially as executioner of the accused at Guantánamo.
In standard courts martial, the accused is afforded a full adversarial defence and legal process. In Guantánamo, the "commission process" (as it is known) does not allow the accused or his defence team to have access to much of the evidence levelled against him - in the interests of "national security". Nor does the accused have the right to challenge the testimony of, or to cross-examine, witnesses.
During a visit to Guantánamo Bay in 2005, I challenged senior staff officers at Camp Delta as to the legitimacy of the "para" legal process in train at the base - in its commissions procedures and "pre-trial administrative review boards". I also inquired as to whether or not - if a prisoner were to receive the death penalty - this would bring the US military into disrepute. The response I got from one senior officer was brief and to the point: "Look, this isn't Nuremberg, we're not gonna hang 'em."
My relief was short-lived. Another senior officer went on to say, "You see, the American people regard hanging to be a cruel and unusual punishment. And, we can't shoot 'em, because that would be bad for morale here on the base. Believe it or not, the guards here build up a relationship, a rapport, with the prisoners which would make it hard for them to shoot them. And it would be a big deal to bring in a firing squad. The best way to deal with this is by lethal injection."
These remarks seem all the more sinister given this week's statement of intent by the Pentagon.
The architecture of Camp Delta in 2005 also gave some clues as to the long-term planning and intentions of the Bush administration. Much of Camp Delta was temporary breeze-block accommodation consisting of relatively open structures of corrugated iron roofs and wire fencing. However, these structures were being replaced by "hard" permanent structures, built by Halliburton and Kellogg Brown and Root, at a cost of tens of millions of dollars.
One particular structure, Camp 5, was a state-of-the-art maximum security prison which held the six prisoners currently facing possible death sentences at Guantánamo. Inside, US military police monitored its "high-value" prisoners on a 24-hour basis. I concluded this facility was permanent, unlike the rest of the complex which contained more than 500 prisoners.
Just over two years later, the prison population at Guantánamo has shrunk to 275. The mission also appears to have narrowed from intelligence-gathering in support of Operation Enduring Freedom in Afghanistan to one of retribution and punishment in support of the Bush administration's "Global War on Terror".
If the commissions process at Guantánamo eventually sentences and executes these prisoners on the basis of withheld evidence and confessions obtained under torture, the US will be brought irrevocably into disrepute. It would represent an affront to the core principles of US democracy. Aside from legal challenges, it would seem the best hope for Guantánamo's detainees lies in November's elections in the US - a "regime change" that might uphold the guarantees of the US constitution.
Dr Tom Clonan is The Irish Times's Security Analyst. He lectures in the school of media, DIT.