Would Gershkovich Have a Better Chance of Acquittal at Gitmo?

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In an article criticizing Russia’s arrest of Wall Street Journal reporter Evan Gershkovich on charges of espionage, the Journal writes that “lawyers with experience in the Russian judicial process predict a journey through a justice system with the familiar features of Western courts but little of their substance.”

The Journal, however, forgets something important: The United States has two judicial systems — one inside the United States and the other located in Guantanamo Bay, Cuba. In actuality, while the Russia judicial system has features of both systems, in reality it more closely resembles the Pentagon’s system at Gitmo.

The American judicial system that operates inside the United States was established by the Constitution and is characterized by long-established legal principles from the common law and from centuries of resistance to tyranny. These principles include such things as trial by jury, right to counsel, due process of law, the right to confront witnesses, habeas corpus, the right to a speedy trial, no cruel and unusual punishments, the right to bail, and others. 

The Pentagon’s judicial system was established in Cuba after the 9/11 attacks. The reason that the Pentagon established its system in Cuba was so that the Pentagon and the CIA would be free to operate their system without any constitutional constraints and without interference from the federal judiciary, including the Supreme Court. Like most conservatives, the Pentagon and the CIA believe that all those legal and constitutional protections are nothing more than technicalities that enable guilty people to go free. Thus, the Pentagon’s objective was to create a Constitution-free zone in Cuba, which, needless to say, was rather unusual given the oath that military officials take to support and defend the Constitution.

At the beginning, no prisoners at Gitmo were permitted to have lawyers. Later, after the Supreme Court declared that the Gitmo system was subject to the Supreme Court’s jurisdiction and that inmates were permitted to have lawyers, the Pentagon decided to go along with the Court’s ruling. Oftentimes, however, communications between attorney and client were secretly monitored by military officials, just like in the Russian system and unlike the American judicial system, where attorney-client communications are kept secret. 

At Gitmo, trial by jury is not permitted. Trial is by military tribunal. But in the Gitmo system, no trial ever needs to be held. Inmates can be kept incarcerated for life without a trial. Moreover, inmates can be tortured into making confessions. Witnesses can also be tortured into giving evidence against the accused. Hearsay evidence is admissible in trials, if trials are ever held. In the unlikely event of a trial, conviction is virtually guaranteed, given the pressure placed on the military tribunal by superior military officers to convict. 

The Journal article points out that under the Russian system, the accused is ordinarily guaranteed a jury trial but that there are exceptions. One exception is espionage, which entails a trial by a judge. The article points out that conviction is virtually guaranteed given that the judge inevitably succumbs to pressure from above.

Thus, under the Russian system, Gershkovich will get a trial, just like in the American system. But the trial will be not a jury trial. It will be by a judge, who will do what he is ordered to do. That part is similar to the Pentagon’s tribunal system, where military officials will do what they are ordered to do, assuming that the Pentagon ever permits a trial to be held. 

An interesting part of the Russian system is that the accused does get a trial. Of course, since the verdict is pre-ordained, the trial is really not a genuine trial at all. In that sense then, Russia’s system more closely resembles the Pentagon’s system, where the accused technically is entitled to a kangaroo trial by tribunal but in reality never receives a trial and instead is simply kept incarcerated for as long as U.S. officials want.

Given the authoritarian nature of the Russian regime, it certainly wouldn’t surprise me if Russian officials followed the Pentagon’s principles regarding torture — that is, torturing Gershkovich into confessing and also using evidence acquired by torture to help convict him. It’s also a safe assumption that Russian prosecutors will be free to use hearsay evidence, just like in the Pentagon’s system, thereby depriving Gershkovich of the right to confront the witnesses against him.

The Journal article says that Gershkovich’s trial will be held in secret. With the exception of FISA courts, judicial proceedings in the American system are open to the public, which is what the Constitution requires. But if trials were ever to be held at Gitmo, it is a virtual certainty that the Pentagon would follow the Russian model with respect to those portions of the trial that affect “national security,” such as the methods used to torture the accused or witnesses against him.

One other thing that is worth mentioning. In the American judicial system, the accused is presumed to be innocent, and the government is required to prove his guilt beyond a reasonable doubt. In the Pentagon system, the accused is presumed guilty and has the burden of proving his innocence. My hunch is that, in practicality, the Russian system mirrors that of the Pentagon. 

It will be interesting to watch as Russia’s judicial proceedings against Evan Gershkovich progress to see how much more the Russian judicial system and the Pentagon’s judicial system at Gitmo have in common.

The post Would Gershkovich Have a Better Chance of Acquittal at Gitmo? appeared first on The Future of Freedom Foundation.

* This article was originally published here


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