By William Fisher
Key elements of the Bush Administration’s anti-terrorist detention policies appear to be unraveling, according to human rights and legal advocates.
In the past two weeks alone, a military judge has disqualified a Pentagon legal official from participating in the Guantanamo war crimes trial of Salim Ahmed Hamdan, a former driver for Osama bin Laden, because he had pushed for "sexy" cases that would capture attention. The U.S. government dropped all charges against the man alleged to have been the "20th hijacker" in the September 11th 2001 terrorist attacks because it is believed his military commission trial would expose evidence obtained through torture. And, in a totally unexpected move, Al Jazeera cameraman Sami Al-Haj was released from Guantanamo after six years in detention without charge.
In the Hamdan case, the judge ruled that the military must appoint a replacement to Air Force Brig. Gen. Thomas Hartmann, the legal adviser to the military tribunals, before the Yemeni’s scheduled trial in June.
Hamdan is charged with supporting terrorism and faces life in prison if convicted. His trial would be the first U.S.war crimes trial for a Guantanamo prisoner.
The dropped charges were against Mohammad al-Qahtani, who has been held at Guantanamo Bay since 2002, following his detention in Afghanistan. In February, he was charged with conspiracy, terrorism, and murder in violation of the laws of war, among other offences.
The Center for Constitutional Rights (CCR), which has provided many of the lawyers representing Guantanamo detainees, said it believed the charges against al-Qahtani had been dropped because he had been tortured. "The government's claims against our client were based on unreliable evidence obtained through torture at Guantanamo," the group said.
"Using torture to string together a web of so-called evidence is illegal, immoral and cannot be the basis for a fair trial," the CCR added.
Defense lawyers say Hartmann rushed proceedings in hopes of speedy convictions and sought to improperly influence who was prosecuted, selecting cases based on their potential to sway public opinion of the process.
At an April 28 hearing on the issue, former chief prosecutor Air Force Colonel Morris Davis testified that Hartmann had pushed for "sexy" cases that would capture attention.
Colonel Davis resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
As legal adviser, Hartmann was charged with providing counsel to the official who makes key decisions such as whether to approve charges against individual detainees.
According to Clive Stafford Smith, a British lawyer who represents a number of Guantanamo detainees, Hartmann “was basically telling (Col. Morris) what to do and saying, ‘Look, there’s an election coming up. It’s in November. We’ve got to have prosecutions now against the high-profile guys. It doesn’t matter if you’re not ready to prosecute them, but we need Khalid Sheikh Mohammed on trial because of electioneering’.”
Prosecutors deny that Hartmann never subjected subordinates to unlawful influence.
While the judge’s ruling directly affects only Hamdan's case, lawyers for the Yemeni detainee said it raises questions about the validity of charges that Hartmann was involved in preparing against other suspects at Guantanamo.
A case currently before the Supreme Court -- Boumediene v. Bush – is challenging the legality of military commissions under the constitution. The Court is expected to rule in the next two months.
Hamdan has already become part of American jurisprudence. In 2005, he brought suit against then Defense Secretary Rumsfeld. The Supreme Court ruled in 2006 that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.
The ruling, a rebuke to the administration and its aggressive anti-terror policies, said the proposed trials were illegal under U.S. law and Geneva Conventions.
Three years ago, the Supreme Court rejected Bush's claim to have the authority to seize and detain terrorism suspects and indefinitely deny them access to courts or lawyers. In this followup case, the justices focused solely on the issue of trials for some of the men.
Published reports in 2006 described al Qahtani's interrogation. The reports -- based on leaks from the Pentagon -- said he had been subjected to stress positions, sleep deprivation, extreme temperatures, humiliation and other highly coercive practices.
Some lawyers believe military officers did not want to face a discussion of these interrogation techniques in court, nor to have their case collapse publicly because the evidence obtained using such techniques might be ruled inadmissible.
It was recently revealed that Cheney, Secretary of State Condoleezza Rice, former Defense Secretary Donald Rumsfeld, former Secretary of State Colin Powell, former CIA chief George Tenet, and former Attorney General John Ashcroft, had met in the White House and personally oversaw and approved the torture by authorizing specific torture techniques including waterboarding. President Bush has admitted he knew and approved of their actions.
Human and legal rights advocates have been outspoken on the military commissions issue. Columbia University law professor Scott Horton told us he believes the process used to establish the commissions -- criminal courts run by the U.S. armed forces -- is likely to result in what says will be “a series of show trials” timed to strengthen the Republican Party’s chances in the 2008 presidential election.
This viewed is shared by Michael Ratner, CCR’s president, who told us that the Military Commission system “has none of the guarantees of regular trials. Coerced and hearsay evidence can be used. There is no jury -- only a group of military officers and the judge is appointed by the Bush administration. Much of the trial can be held in secret and the defendant does not get to see all of the evidence. After this sham process the defendant if convicted can receive the death penalty. There is a barbarity to the actions of the Bush administration that is without precedent.”
And Gabor Rona, International Legal Director for advocacy group Human Rights First, told us, “Much of the world considers the death penalty an international human rights violation even when imposed after the fairest of procedures. To impose it through an untested, ad hoc process that has not yet successfully completed a trial even for a misdemeanor will likely be viewed with deep skepticism.”
In related developments, the American Civil Liberties Union (ACLU), has joined with the National Association of Criminal Defense Lawyers (NACDL), to assemble defense teams to assist in the representation of detainees facing prosecution in the military commissions proceedings at Guantánamo “in order to protect American values of fairness and justice and the constitutional guarantee of due process.”
And another legal advocacy group, the National Lawyers Guild (NLG) called on Congress to appoint a Special Prosecutor, independent of the Department of Justice, to investigate and prosecute senior Bush Administration officials and lawyers for their role in the torture of prisoners in U.S. custody.
Since the U.S. detention facility on this southeastern corner of Cuba opened in January 2002, only one military commission has reached a verdict, when Australian David Hicks pleaded guilty to terrorism charges in March 2007. It was part of a politically orchestrated deal that returned Hicks to his home country to serve out his sentence. He was released last December.
The Al Jazeera cameraman, who had been on a protracted hunger strike during his detention, was flown back to his native Sudan. The Pentagon has not explained his release.