Highlights

 
Quotable
The essential act of war is destruction, not necessarily of human lives, but of the products of human labor.
George Orwell
Original Letters Blog US Casualties Contact Donate

 
July 22, 2008

Hamdan Case to Test Military Tribunals


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.

Attorney General Michael Mukasey also 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, "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," he said. "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."

Other legal experts, including Columbia University law professor Scott Horton, are questioning whether the government can obtain convictions without using evidence obtained through torture.

Horton told IPS he believes the process used to establish the military 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.

Defenders of the military commissions point to the 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 Col. 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.

(Inter Press Service)

comments on this article?
 
 
Archives

  • Obama Faces Spate of 'Terror War' Lawsuits
    3/27/2009

  • Red Cross Report Bolsters Case for Bush Inquiry
    3/19/2009

  • Obama Follows Bush on Detainees
    3/17/2009

  • Senate Committee Weighs 'Truth Commission'
    3/5/2009

  • Al-Marri Lawyers Seek Supreme Court Review
    3/4/2009

  • Lawsuits Challenge Charity Blacklisting
    3/4/2009

  • Britain Admits Complicity in U.S. Rendition
    2/27/2009

  • What About Bagram?
    2/26/2009

  • Gitmo Report Contradicts Govt. Claims of 'Humane' Detention
    2/25/2009

  • Court Passes the Buck on Fate of Chinese Muslims
    2/20/2009

  • Democrats Divided Over 'Reckoning' for Bush
    2/17/2009

  • Lawsuit Sheds More Light on Terror War Abuses
    2/16/2009

  • Rendition Case Enters 'Bizarre' Realms of Secrecy
    2/14/2009

  • 'State Secrets' Privilege Not Gone With Bush
    2/10/2009

  • The Children of Guantánamo
    2/6/2009

  • Study Challenges Claims of Gitmo Recidivism
    2/5/2009

  • Indefinite Detention Case to Test Obama's Pledges
    2/5/2009

  • Close Torture Loopholes, Physicians' Group Urges
    1/30/2009

  • Muslim World Hails End of a Despised Symbol
    1/27/2009

  • Fate of Guantánamo Detainees Still Murky
    1/14/2009

  • Bagram: Worse Than Guantanamo?
    1/13/2009

  • 'Bad Apples' Didn't Fall Far From the Tree
    12/20/2008

  • Immunity Recedes for Private Contractors in Iraq
    12/6/2008

  • Ret. Officers Urge Obama to Expunge 'Stain of Torture'
    12/4/2008

  • Next President Will Inherit Guantanamo Dilemma
    10/22/2008

  • Freedom Recedes for Uighurs at Guantanamo
    10/22/2008

  • Muslim Charity to Get
    Its Day in Court
    10/13/2008

  • The Most Secretive Administration Ever?
    9/16/2008

  • Muslim Charities Negotiate a Minefield
    8/30/2008

  • Arar Faces Uphill Legal Battle
    8/19/2008

  • One-Fifth of Iraq Funding Paid to Contractors
    8/15/2008

  • Hamdan's Future Remains Unclear
    8/9/2008

  • NGO 'Blacklist' Unfair and Arbitrary, Groups Say
    7/24/2008

  • New Spying Law Quickly Challenged
    7/23/2008

  • Hamdan Case to Test Military Tribunals
    7/22/2008

  • Uyghurs Jailed From Guantanamo to Beijing
    7/15/2008

  • 'State Secrets' Privilege Derails Rendition Suit
    7/4/2008

  • Guantanamo Trials Hit Setbacks
    5/21/2008

  • Lawmakers Seek Probe of 'Media Generals'
    5/9/2008

  • Abuse Claims Mount Against Pentagon, Contractors
    5/8/2008

  • Fabricated 'Bioterrorism' Case Collapses
    5/3/2008

  • Groups Wrangle with CIA over 'Ghost Prisoners'
    4/26/2008

  • Courts May Get More Latitude on 'State Secrets'
    4/26/2008

  • Trials of Muslim Charities Likened to a Witch-Hunt
    4/22/2008

  • Serious Abuses No Bar to US Military Aid
    4/11/2008

  • Jordan Acted as Hub for US Renditions, Report Says
    4/9/2008

  • Arab Govts Ever More Draconian, Group Says
    3/28/2008

  • Reforms Failed to Curb FBI Spying
    3/19/2008

  • Former Gitmo Prosecutor to Testify for Defense
    3/12/2008

  • We Don't Do Torture – Especially in Debates
    3/11/2008

  • Just Waterboarding Under the Bridge
    3/10/2008

  • Bush, Congress Wrangle Over Domestic Spying
    2/28/2008

  • Renditions Clothed in State Secrets Mantle
    2/26/2008

  • Experts Doubt Fair Trials for Gitmo Suspects
    2/20/2008

  • Bush's Budget Sidelines Transparency
    2/18/2008

  • Bush: Uniter, Decider, and Now, Interpreter
    2/6/2008

  • Congress Seeks to Limit 'State Secrets' Privilege
    2/1/2008

  • Afghan Prison Looks Like Another Guantanamo
    1/15/2008

  • Terror Prosecutions Shed More Heat Than Light
    1/3/2008

  • Legal Community Condemns Destruction of CIA Tapes
    12/27/2007

  • 'Black Site' Survivor Relates Horrific Tale
    12/20/2007

  • Bush's New Spin Master
    a Lame Duck?
    12/19/2007

  • Glaring Hypocrisy of Arab Annapolis Participants
    12/6/2007

  • Civil Libertarians Warn of 'PATRIOT Act Lite'
    11/28/2007

  • Gitmo Policy Faces Another Supreme Court Test
    11/22/2007
  • William Fisher writes for Inter Press Service.

    Reproduction of material from any original Antiwar.com pages
    without written permission is strictly prohibited.
    Copyright 2014 Antiwar.com