Of self-incrimination by way of torture and national security: Next [challenge] for the Guantanamo detainees

I read an interesting article on today's 'Weekender' media site. This article reported on the admissibility of evidence obtained through torture against the detainees at Guantanamo Bay. It is a known fact that detainees are tortured for information to convict others and themselves as taking part in terrorist activities and also providing information to the USA government on other detainees that are taking part in such heinous activities. However, should this evidence be admissible in a competent court?

The Bush regime seems to be of the view that in the interest of national security such evidence should be admissible against detainees. However, when comparing national security to international humanitarian law principles against torture, what should take preference?

This blog will deal with the situation where an accused incriminated himself, because he was tortured to give such evidence.

Surprisingly, when it comes to national security, the USA seems to forget about the precedence the Supreme Court set in the famous case of Miranda v Arizona. This case dealt with the constitutionality of the privilege against self incrimination. The court stated: "We hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege... no evidence as a result of interrogation can be used against him". If the USA wants to deal with these detainees domestically, they should either (1) uphold the values placed within their Constitution, especially those relating to the rights to a fair trial or (2) uphold basic international human rights law, which also provides for fair trial rights. Self-incriminating evidence obtained by way of torture should not be admissible in court, according to the precedence set in the Miranda case.

On the other hand, any court of law that deems itself as an institution that upholds justice would not admit evidence obtained by way of torture, unless some valid evidential exclusion can be deemed justified to admit such evidence. I am still not convinced that 'national security' serves as an appropriate measure to admit evidence against others and the 'accused'. The International Tribunals have not admitted such evidence against accused persons who have actually committed of the most heinous crimes in the world, similar to that of 9/11.

My next question is thus the following: Is the Bush Regime exploiting the detainees and robbing them of their basic fair trial rights, because according to this regime 'They are criminals that do not deserve these rights'? That's the question I leave open to debate!

A Truth Commission the answer to war crimes after 9/11?

I just read an interesting column in today's [6 July 2008] edition of the New York Times. In this column Nicholas Kristof suggests that a truth commission be set up to investigate the atrocities committed by the Bush Regime post 9/11. The question which I would like to debate is whether we can grant amnesty to people who have committed war crimes in the form of torture and detention without a trial or a charge?

Coming from South Africa, I witnessed the success of a truth commission, as we had one set up under the Truth and Reconcialition Commission Act. However, the commission had its cons as it never had enough time to address and grant redemption to all the victims and their families of the Apartheid regime.

A truth commission for the USA will only be effective if lessons can be learnt from it. Lessons not to go back to commit grave breaches of international humanitarian law. It should be remembered that torture and detention without trial was not the only violations that the USA defence force and Bush Administration committed. There is also the destruction of religious buildings and other property protected under the Geneva Conventions, which the military tore down. Truth and Reconcialition would be all fine and dandy, but who will pay for the restruction of these buildings? Who will pay for the countless innocent detainees who are still tortured and detained in Guantanamo Bay?

Another option that should also be investigated is the possibility of criminal and war crimes charges against the perpetrators and those who aided and abetted these crimes. However these also raise important questions as the USA is not a party to the ICC Statute and therefore the ICC does not have the jurisdiction to try those who were involved in committing war crimes in Iraq, Afghanistan and Guantanamo Bay. Would the USA courts be objective in trying these offenders?

These atrocities cannot be ignored. Therefore I do agree with Kristof that a Truth Commission would be a good option. However I will only agree subject to the consequence that the USA government learn an important lesson from this. One cannot take away peoples basic civil and political human rights, on the suspicision that they are a risk to national security. If they they are charged with terrorist activities and receives a due process, fair trial then such a consequence [like forming a Truth Commission] could possibly be negated.

Celebrating Independance Day with a guilty conscience?

So today is Independance Day in the USA. A day where the american citizens and nationals celebrate its break away from the Common Wealth system and ties of the British monarch.

However, I still need to ask, can the American folk truly celebrate this day without feeling a little guilty? The alleged war against terror has nothing but burnt the Bush Administration and placed so much pressure on its citizens in the international world. This blog intends to highlight why the American nation should actually feel guilty about celebrating independance day.

1) Guantanamo Bay Detention Facility:
I watched a documentary that tells the storty of three British Muslim citizens who were captured (in Afghanistan) and sent to Guantanamo Bay where they were tortured and interrogated as to their involvement with Osama Bin Laden and his terrorist organisation. No concrete evidence has ever been brought forward which would 'incriminate' them. However, this documentary made the Bush Administration out as the 'biggest losers' in the war against terror. Guantanamo Bay IS NOT complying to the Geneva Conventions or its additional Protocols as the Bush Administration is alleging. The so called detainees are not afforded their basic human rights nor their fair trial rights. That is if they ever go on trial. Thank goodness for the Supreme Court's ruling that these detainees have fair trial rights and that they are being violated by the Bush Administration.

The response of the Administration is quite noteworthy: "These people are criminals that do not enjoy the freedom of human rights". I wonder, criminal according to who? What proof does the Administration have that these people are criminals? If they were caught as a result of this war on terror, why are they not sent to the International Criminal Court for prosecution? Oh I forgot, the USA is not a state party to the ICC Statute. Why not? Is it because of Guantanamo Bay?

2) Iraq
This is where I feel like saying 'enough said'. Even though the USA is attempting to establish a better rule in this country they have miserably failed... 6 years later. Yes, Suddam was captured, had his day in court and rightfully executed. However, the Sunnis and the Shi'tes are still going at each other. The Administration should have possibly placed there focus on getting these two ethnic Muslim Groups at peace first, before placing its focus on Saddam Hussein.

These are only two examples why the USA government cannot celebrate Independance Day with as 'One nation over God' as they are robbing others of their independance.

Thus, before the USA government can ever ask for sanctions again President Mugabe and his regime in Zimbabwe, they first have to clean up on their own porch. Before they can criticise President Mbeki for his silent diplomacy policy on Zimbabwe, they first have to look at whether Bush was really succesful in his progressive actions towards this so called war against terror.

Or in the words of the Michael W Smith song: 'One nation over God look at what we have become'.