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
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
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)