Key elements of the Bush administration's anti-terrorist
detention policies appear to be unraveling, according to human rights and legal
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 Sept. 11, 2001, terrorist attacks because
it is believed his military commission trial would expose evidence obtained
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 offenses.
The Center for Constitutional Rights (CCR), which has provided many of the
lawyers representing Guantanamo detainees, said it believed the charges against
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 Col.
Morris Davis testified that Hartmann had pushed for "sexy" cases
that would appeal to the media. 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
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 ever 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 U.S. jurisprudence. In 2005, he brought
suit against then-Defense Secretary Donald 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 the Geneva
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 follow-up case, the justices focused solely on the
issue of trials for some of the men.
Published reports in 2006 described 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 Vice President Dick Cheney, Secretary of State
Condoleezza Rice, former Defense Secretary 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 authorized 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 IPS 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 IPS 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," Ratner noted. "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 IPS, "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 has joined with
the National Association of Criminal Defense Lawyers 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, 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
(Inter Press Service)