Continued developments involving detentions at Guantanamo Bay.

• Author: Crook, John R.

There have been further developments involving the continued detention of terrorism suspects at Guantanamo Bay and the projected trials of some detainees by military commissions constituted under the Military Commissions Act (MCA).

Senior U.S. Figures Call for End to Guantanamo Detention, Express (Varying) Concerns About Capital Cases. In March 2008, at a conference at the University of Georgia Law School, five former U.S. secretaries of state (Madeline Albright, James A. Baker III, Warren Christopher, Henry Kissinger, and Colin Powell) all reportedly supported ending detentions at Guantanamo Bay. (1)

In March, responding to a questioner in London, U.S. Attorney General Michael Mukasey expressed a "personal view" seemingly at odds with the recommendations of Department of Defense prosecutors. Mukasey expressed the hope that the six defendants facing military commission trials for their role in the September 11, 2001, attacks on the United States would not receive the death penalty, lest they be seen as martyrs. Defense lawyers and others criticized Mukasey's comment, which they saw as official prejudgment of the defendants' guilt, contrary to the presumption of innocence. (2) (Mukasey's prepared remarks defended the fairness of military commission trials under the MCA.) (3)

The president of the American Bar Association also expressed concern about death penalty prosecutions under the MCA, albeit for different reasons than those advanced by the attorney general.

American lawyers remain deeply troubled by six death penalty cases moving forward in Guantanamo. ... I have grave concerns about the process by which Guantanamo detainees will be tried. Detainees cannot seek habeas corpus review.... The Guantanamo defense office is understaffed, and restricted in its ability to meet confidentially with defendants. Moreover, Pentagon and Justice Department officials have ruled that hearsay testimony and coerced confessions are admissible--even when obtained through techniques, such as "waterboarding," that are now illegal for military interrogators to apply. No one questions the conscientious men and women who will try the Guantanamo detainees. But if basic due process is abridged this way, especially in death penalty cases, such trials are likely to leave a cloud of doubt and distrust, in the United States and abroad. (4) Additional Detainees Transferred from CIA Custody to Guantanamo Bay. In March 2008, the Department of Defense announced that it had taken custody of Muhammad Rahim al-Afghani, a "high value" detainee previously held in Central Intelligence Agency custody. (5) Although President Bush stated in September 2007 that all such detainees then in CIA custody were being transferred to Guantanamo Bay, he did not state that detentions by the CIA would end. Excerpts from the announcement follow:

The Department of Defense announced today that it has custody of Muhammad Rahim...