Anyone who has kept half an eye on the proceedings
at the military commissions in Guantánamo – the unique system of trials
for "terror suspects" that was conceived in the wake of the 9/11
attacks by Vice President Dick Cheney and his close advisers – will be aware
that their progress has been faltering at best. After six and a half years,
in which they have been ruled illegal by the Supreme Court, derailed by their
own military judges, relentlessly savaged by their own military defense lawyers,
and condemned as politically motivated by their own former chief prosecutor,
they have only secured one contentious result: a plea bargain negotiated by
the Australian David Hicks, who admitted to providing "material support
for terrorism," and dropped his well-chronicled claims of torture and
abuse by U.S. forces, in order to secure his return to Australia to serve out
the remainder of a meager nine-month sentence last March.
In the last few weeks, however, Cheney's dream has been souring at an even
more alarming rate than usual. Following boycotts
of pre-trial hearings in March and April by three prisoners – Mohamed Jawad,
Ahmed al-Darbi, and Ibrahim al-Qosi – the latest appearance by Salim Hamdan,
a Yemeni who worked as a driver for Osama bin Laden, spread the words "boycott"
and "Guantánamo" around the world.
Salim Hamdan's Boycott
Hamdan is no ordinary Guantánamo prisoner.
It was his case, Hamdan v. Rumsfeld, that shut down the military commissions'
first incarnation in June 2006, when the Supreme Court ruled that they were
illegal, a decision that forced the administration to press new legislation
– the Military Commissions Act – through a sleeping Congress later that year.
But Hamdan's fame meant little to him on April 29, when he too decided to
his trial, telling Navy Capt. Keith Allred, the judge in his last pretrial
hearing before his trial is scheduled to begin, "The law is clear. The
Constitution is clear. International law is clear. Why don't we follow the
law? Where is the justice?"
For his part, Allred did not give up without attempting to persuade Hamdan
that he should believe in the legal process before which he found himself.
"You should have great faith in the law," he said. "You won.
Your name is all over the law books." This was true, but it was little
consolation for Hamdan, who was charged again as soon as the commissions were
revived in Congress. Nor could Allred's addendum – "You even won the very
first time you came before me" – sway him, even though that too was true.
Last June, when Hamdan appeared before Allred for the first time, in the first
pretrial hearing for his new military commission, Allred dismissed
the case, pointing out that the Military Commissions Act, which had revived
the commissions, applied only to "unlawful enemy combatants," whereas
Hamdan, and every other prisoner in Guantánamo for that matter, had
only been determined to be "enemy combatants" in the tribunals –
the "combatant status review tribunals" – that had made them eligible
for trial by Military Commission.
It was small wonder that Hamdan was despondent, however. Two months later,
an appeals court reversed
Allred's decision, and Hamdan – twice a victor – was charged once more and
removed from a privileged position in Guantánamo's Camp IV – reserved
for a few dozen compliant prisoners who live communally – to Camp VI, where,
like the majority of the prisoners, he has spent most of his time in conditions
that amount to solitary confinement, and where, as his lawyers pointed
out in February, his mental health has deteriorated significantly.
As he prepared to boycott proceedings, Hamdan had a few last questions for
Allred. He asked the judge why the government had changed the law – "Is
it just for my case?" – and responded to Allred's insistence that he would
do everything he could to give him a fair trial by asking, "By what law
will you try me?" When Allred replied that he would be tried under the
terms of the Military Commissions Act, Hamdan gave up. "But the government
changed the law to its advantage," he said. "I am not being tried
by the American law."
Davis Condemns the Commissions (Again)
Hamdan's eloquent and restrained explanation
for his boycott was the most poignant event in his hearing, but it was not
the most explosive. That accolade was reserved for Col. Morris Davis, the former
chief prosecutor for the commissions, who resigned
noisily last October, citing political interference in the process. Once the
commissions' stoutest supporter – in 2006 he told reporters, "Remember
if you dragged Dracula out into the sunlight he melted? Well, that's kind of
the way it is trying to drag a detainee into the courtroom" – Davis explained
his Damascene conversion in an op-ed for the Los
Angeles Times in December.
Laying into his chain of command, Davis lambasted
his immediate boss, Brig. Gen. Thomas Hartmann, who had recently been appointed
as the legal adviser to the commissions' "convening authority," Susan
Crawford, for politicizing the process, attempting to hold higher-profile trials
behind closed doors (whereas Davis insisted that transparency was "critical").
He also criticized Crawford, a retired judge, who had served as Army counsel
and defense department inspector under Dick Cheney in the first Bush administration
in the 1980s, for overstepping her administrative role by "intermingling
convening authority and prosecutor roles" and "perpetuat[ing] the
perception of a rigged process stacked against the accused."
Davis also delivered a particularly stern rebuke to Crawford's overall boss,
the Department of Defense's chief counsel William J. Haynes II, pointing out
Haynes' role in "authorizing the use of the aggressive interrogation techniques
some call torture," declaring, "I had instructed the prosecutors
in September 2005 that we would not offer any evidence derived by waterboarding,
one of the aggressive interrogation techniques the administration has sanctioned,"
and declaring, unambiguously, that he resigned "a few hours after"
being informed that he had been placed in a chain of command under Haynes.
On April 28, Davis testified for Hamdan and reprised his complaints, telling
Allred, as the Washington
Post described it, that senior Pentagon officials, including deputy
defense secretary Gordon England, had "made it clear to him that charging
some of the highest-profile detainees before elections this year could have
'strategic political value.'" After pointing out that he had wanted to
wait until both the cases and the entire military commissions system had "a
more solid legal footing," he reiterated his complaints against Haynes,
telling Navy Lt. Cmdr. Brian Mizer, Hamdan's military defense lawyer, what
he had told the Nation
in February: that, during a discussion of the Nuremberg Trials, in which Davis
had noted that there had been some acquittals, which had "lent great credibility
to the proceedings," Haynes had told him, "We can't have acquittals.
We've been holding these guys for years. How can we explain acquittals? We
have to have convictions."
Davis also defended his uncompromising opposition to the use of evidence
obtained through torture, once more directing particular criticism at Hartmann.
"To allow or direct a prosecutor to come into the courtroom and offer
evidence they felt was torture, it puts a prosecutor in an ethical bind,"
he said, adding that, in response to his complaints, Hartmann had replied that
"everything was fair game – let the judge sort it out." He added
that Hartmann "took 'micromanagement' of the prosecution effort to a new
level and treated prosecutors with 'cruelty and maltreatment,'" and explained
that he "was trying to take over the prosecutor's role, compromising the
independence of the Office of Military Commissions, which decides which cases
to bring and what evidence to use."
Ali Hamza al-Bahlul and Omar Khadr
A week later, on May 7, the boycott bandwagon
rolled on when Ali Hamza al-Bahlul, another Yemeni, also refused to cooperate.
Sitting alone in Camp Justice, Guantánamo's new courtroom, having spurned
the assistance of his government-appointed attorney, Bahlul, who is accused
of producing videos for al-Qaeda, and who famously boycotted his pre-Hamdan
commission hearings in 2006, essentially picked up where he left off over two
years ago, proudly proclaiming
his association with Osama bin Laden, and telling his judge, Army Col. Peter
Brownback, "We will continue our jihad, and nothing's going to stop us.
You must not oppress the people in the land. Your oppression against us and
your support to the strategic ally in the region is what made me leave my house
and today, I'm telling you, and you're a man of law, if you sentence me to
life … me and the others will be the reason for the continuation of the war
against America." He added that he did not intend to dispute any of the
prosecution's allegations. "I am responsible for my own actions in this
world and the afterworld," he said. "I don't consider it to be a
While Bahlul's words – delivered to full advantage from his sudden perch
in the media spotlight – served only to underline, incongruously, the utter
silence in which around 200 other Guantánamo prisoners are held (those
considered less dangerous, or not dangerous at all, whom the administration
has no intention of ever prosecuting), his words were almost immediately overshadowed
when, the day after, Brownback, who was on the verge of securing a dubious
place in the history books by ruling that the trial of Omar
Khadr – the only prisoner to date who has not boycotted his hearings –
would go ahead in June, threatened his own boycott.
Furious that, despite repeated requests, the prosecution (led by Maj. Jeffrey
Groharing) had failed to provide Khadr's lawyers with their client's Detainee
Information Management System records, to analyze his treatment in an attempt
to uncover reasons why incriminating statements – possibly obtained through
torture – should be suppressed, Brownback declared,
"I have been badgered, beaten, and bruised by Maj. Groharing since the
7th of November to set a trial date. To get a trial date, I need to get discovery
done." He then ordered the government to provide the records by May 22,
or, he said, he would suspend the proceedings entirely.
While Khadr's lawyer, Lt. Cmdr. William Kuebler, expressed skepticism about
Brownback's exclamation, telling reporters, "What we've seen in this process
is that military judges will give the defense Pyrrhic victories when it doesn't
threaten the foundations of the system," Brownback's intervention at the
very least delayed confirmation of his own notoriety. If he decides, after
May 22, to proceed with the trial of Khadr, who was just 15 years old when
he was captured after a gun battle in Afghanistan that left one U.S. soldier
dead, he will be the first judge since the Second World War to proceed with
a war crimes trial against a prisoner who was just a child when he was captured.
Judge Bars Commissions' Legal Adviser
The day after Col. Brownback's shakeup of the
prosecutors in Omar Khadr's case, Capt. Allred, having mulled over Morris Davis'
complaints against Brig. Gen. Hartmann, surprised everyone and threatened the
commissions' teetering legitimacy once more, by disqualifying Hartmann from
playing any role in Salim Hamdan's trial. Clearly swayed by Davis' testimony,
Allred ruled on May 9 that he was "too closely allied with the prosecution,"
as the New
York Times described it. "National attention focused on this dispute
has seriously called into question the legal adviser's ability to continue
to perform his duties in a neutral and objective manner," Allred wrote,
explaining that public concern about the fairness of the cases was "deeply
disturbing," and that he did not find that Hartmann "retains the
required independence from the prosecution."
The Times followed
up with more excerpts from Allred's decision, which confirmed his support
for Davis' views. "Telling the chief prosecutor (and other prosecutors),"
he wrote, "that certain types of cases would be tried and that others
would not be tried, because of political factors such as whether they would
capture the imagination of the American people, be sexy, or involve blood on
the hands of the accused, suggests that factors other than those pertaining
to the merits of the case were at play."
Allred also referred explicitly to Davis' statement that Hartmann had put
pressure on him to use evidence obtained through torture. Noting, as the Times
put it, that "prosecutors have an ethical obligation to present only evidence
they consider reliable," Allred wrote that directing the use of "evidence
that the chief prosecutor considered tainted and unreliable, or perhaps obtained
as a result of torture or coercion, was clearly an effort to influence the
professional judgment of the chief prosecutor."
9/11 Charges Confirmed, but Qahtani Dropped
While the administration tried to make light
of Allred's ruling, arguing that it applied only to Hamdan's case, and that
Hartmann's position was secure, it was difficult not to whiff a stench of desperation
in the Pentagon's announcement, just three days later, that a date had been
set for the first pretrial hearing of another group of prisoners – the alleged
9/11 conspirators, including Khalid Sheikh Mohammed, who confessed in his tribunal
last year that he was "responsible for the 9/11 operation, from A to Z"
– against whom charges had been announced
Although it's almost certain that this decision – though perhaps rushed forward
– had already been making its tortuous way through the necessary bureaucratic
processes, its propaganda value was immediately undermined when it became apparent
that, of the six men initially charged, one – Mohammed al-Qahtani – was missing
from the final charge sheet.
explained, the charges against Qahtani were dropped by Susan Crawford "without
formal explanation," and Hartmann's offering – that the dismissal provided
evidence of the "strength of the system and the careful, deliberative,
and fair legal process in place at Guantánamo" – was hardly sufficient
to paper over the cracks. Although the charges were dismissed without prejudice,
meaning that they could be reinstated in the future, nobody expects that this
The problem, as immediately became apparent, is that Qahtani, unlike the
other five men, who were held for many years in secret prisons run by the CIA,
was subjected to torture in Guantánamo, under a program devised specifically
for him and approved by Donald Rumsfeld in late 2002. The details of his ordeal
are well known, as Time published his leaked interrogation
log in 2006, and even a military investigation in 2005, which stopped short
of describing his treatment as torture, concluded that he had been subjected
In the world of the military commissions, Qahtani's case was damaging for
two specific reasons: firstly, because, although the other five men were tortured
in CIA custody – and the CIA has publicly acknowledged
that KSM was subjected to the torture technique known as waterboarding (a horrendous
form of controlled drowning) – he and the others have been re-interrogated
by "clean teams" of FBI agents, who have solicited confessions without
resorting to torture, whereas Qahtani, according to his lawyers, has not.
Leaving aside for a moment the implausibility of somehow "purifying"
confessions obtained through torture by using "clean teams" – and
what it reveals, unintentionally, about the "dirty teams" whose activities
are purportedly being airbrushed from history – the second reason for dropping
charges against Qahtani only reinforces the legal netherworld in which the
commissions operate. According to their rules, the records of Qahtani's interrogations,
which took place in Guantánamo, could be produced as evidence of torture,
whereas those of the "high-value detainees," interrogated by CIA
teams in secret overseas prisons, can be overlooked, because, as Time
put it, "Military courts overseeing Guantánamo have indicated they
cannot compel evidence from U.S. intelligence agencies."
In reality, of course, it's inconceivable that the trials of tortured prisoners
– even those who apparently masterminded the 9/11 attacks – can actually proceed
without torture being mentioned, but for now, at least, the administration
is clinging to its "clean team" alibi, and hoping to minimize the
fallout from Allred's latest ruling.
As for Qahtani, described by his lawyer, Gita Gutierrez, as a "broken
man, broken by torture," his only way out now is for the Saudi government
to negotiate his repatriation. Gutierrez told Time that she was "extremely
concerned about his ability to survive mentally and physically for much longer
in Guantánamo," and stated, unequivocally, that the dismissal of
charges "clearly indicates the government's awareness that any and all
statements obtained from Mohammed [al-]Qahtani were extracted by torture or
the threat of torture." Replace his name with that of Khalid Sheikh Mohammed
or any of the other four men charged – Ramzi bin al-Shibh, Mustafa al-Hawsawi,
Ali Abdul Aziz Ali, and Walid bin Attash – and you see the problem that faces
the administration as it prepares for the most significant trial since 9/11.