By William Fisher
As the long–awaited trial of Guantanamo detainee Salim Ahmed Hamdan opened this week at the U.S. naval base in Cuba, human rights groups filed suit demanding that the Department of Justice (DOJ) produce documents related to the U.S. government’s ghost detention, torture, and extraordinary rendition program, and Attorney General Michael Mukasey called on Congress to quickly pass new legislation to guard against judges imposing a patchwork of conflicting rules that could produce confusion, more court challenges and even lengthier delays for prisoners who have been held at Guantanamo for as long as seven years.
Hamdan, Osama bin Laden's alleged former driver, is the first terror suspect to face trial at Guantanamo in seven years and the first test of whether that system can dispense fair and impartial justice. The charges against the Yemeni father of two will proceed before a military commission -- the first since the end of World War II -- with a jury of uniformed officers and rules that many constitutional authorities believe give great deference to the prosecution. Evidence obtained from "cruel" and "inhuman" interrogation methods as well as hearsay evidence will be admissible under certain circumstances. Hamdan faces a maximum of life in prison if convicted.
"This was supposed to be the premier system for bringing to justice the masterminds of the worst crime ever committed on U.S. soil," said Tom Malinowski, Washington advocacy director for Human Rights Watch. "The only result in seven years was the conviction of an Australian kangaroo trapper, who is now free."
He was referring to Australian David M. Hicks, who last year pleaded guilty to a terrorism charge in the only Guantanamo case to be fully adjudicated. Hicks was sent to Australia as part of a political deal and was later released from prison there.
Hamdan’s lawyers have argued he was beaten and abused at Guantanamo and subjected to a program of systematic sleep deprivation that they said constitutes torture.
Hamdan is one of about 20 prisoners whose cases are scheduled to be heard by juries composed of military service members rather than civilians.
The Hamdan trials, as well as those that are to follow, have been widely criticized by constitutional scholars. For example, Brian J. Foley, Visiting Associate law professor at Boston University, told IPS, "As these 'trials' get underway, the paucity of thinking that went into their design is emerging for even the dimmest-witted to see. Until now, the trials have been merely hypothetical, an angry denial of due process by a wounded super-power that seems unable and unwilling to recover from a terror attack that occurred more than five years ago.”
He added, "The basic problem underlying all the tribunals at Guantanamo (military commissions and Combatant Status Review Tribunals) is that the rules are rigged for easy U.S. 'victories.' But when we let tribunals use coerced confessions and hearsay, and when we make it hard for defendants to call witnesses and cross-examine, the joke is on us. At the end of the day, we cannot know if the people the tribunals say are terrorists are really terrorists at all, or if the plots they confess to participating are not merely fantasies.”
Defenders of the military commissions are defending its multi-layered due process procedures -- including the right to appeal a conviction to federal court -- that Congress added since Bush proposed the panels. Proponents of the new system say people who committed heinous acts against the United States do not deserve the constitutional protections of its federal courts.
Even if Hamdan is acquitted of conspiracy and material support of terrorism charges – an unlikely outcome -- he probably would not be released because he has been designated an "enemy combatant" by the military. The military contends that prosecutors would be unchanged by an acquittal even if international pressure mounts for his release.
Such international pressure came last week, when hundreds of European legislators filed a court motion to postpone Hamdan's trial while he challenges the legality of Military Commissions.
In a new legal brief, the Europeans said they were “concerned that (Hamdan's) imminent military commission trial will not exclude evidence that contravenes international standards of fair trial, due process and the protection of human rights."
But last week, a federal judge ruled that Hamdan’s Military Commission trial should continue, and suggested that appellate relief could come from the military’s own internal process or from the U.S. Federal Court of Appeals.
Hamdan has already become something of an icon in U.S. constitutional history. In a lawsuit brought by Hamdan's attorneys, the Supreme Court in 2006 struck down the military commission system, ruling that it was not authorized by federal law and violated the Geneva Conventions. Congress reacted by passing the Military Commissions Act of 2006, under which
Hamdan is being tried.
The Act banned evidence obtained using torture but said statements derived from harsh interrogations are allowable if the judge finds the evidence reliable and relevant. In 2005, Congress banned "cruel, inhuman, or degrading treatment," but statements made under such duress before that date could be admissible. Many of Hamdan's interrogations occurred before the congressional action, according to court testimony.
The Hamdan proceedings are seen by observers as a way to test the long-delayed military system on an alleged low-level al-Qaeda foot soldier and thus be primed for the trials of “high value” terrorist leaders to come. These include proceedings against Khalid Sheik Mohammed, self-proclaimed mastermind of the Sept. 11, 2001, attacks, Abu Zubaydah, and other accused planners.
One of the most prominent figures to argue for delay of Hamdan’s case is Air Force Colonel Morris Davis, the former chief prosecutor at Guantanamo. He resigned his position late last year in protest over what he said was political interference.
“My policy as chief prosecutor had been that we would not offer any evidence obtained by waterboarding, specifically, or any other interrogation techniques that were unduly coercive,” Davis said, adding, “I felt I couldn’t ensure full, fair and open trials, and I resigned—asked to resign.” In April, he testified as a witness for Hamdan and offered a harsh critique of the military commission system.
Attorney General Mukasey’s plea to Congress related to legislating rules to avoid confusion and further delays in the large number of habeas corpus suits already filed with the federal appeals court in which Guantanamo detainees are challenging the basis of their detention. But with only five weeks remaining in its legislative calendar, it is doubtful that the current Congress could develop a plan that would be acceptable to the Bush Administration and to both Republican and Democratic lawmakers.
As the Hamdan trial began, leading human rights groups filed a court motion under the Freedom of Information Act (FOIA) for a preliminary injunction to compel the Department of Justice and other agencies to release information requested in 2004 and 2006. The requested information relates to the government’s program of secret or irregular detention.
The groups are Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law’s Center for Human Rights and Global Justice (NYU IHRC/CHRGJ).
“The more the DOJ stalls in admitting its role in the rendition, disappearances, and torture program, the more obvious it becomes that it has greatly contributed to the illegality that has come to define this administration over the past seven years,” said Jayne Huckerby, Research Director of the CHRGJ.