[Ppnews] Salim Hamdan's Guantanamo Trial

[Political Prisoner News]

http://www.counterpunch.org/worthington07242008.html
July 24, 2008

Salim Hamdan's Guantanamo Trial


Folly and Injustice

By ANDY WORTHINGTON

On June 12, when the Supreme Court 
<http://www.counterpunch.org/worthington06132008.html>ruled, 
in Boumediene v. Bush, that the prisoners at 
Guantánamo had constitutional habeas corpus 
rights, it was not immediately clear if the 
decision would have an impact on the Military 
Commissions at Guantánamo, the alternative legal 
system for trying “War on Terror” prisoners that 
was stealthily established in November 2001 
(bypassing the Justice Department, the State 
Department and the National Security Agency) by 
Vice President Dick Cheney and his chief counsel David Addington.

Logic dictated that Boumediene would extend to 
those facing trial by Military Commission, 
because, under the terms of the Military 
Commissions Act (MCA), which was passed by 
Congress after the Supreme Court struck down the 
first version of the Commissions as illegal in 
June 2006, prisoners could only be put forward 
for trial by Military Commission if they had been 
designated as “enemy combatants” in the Combatant 
Status Review Tribunals (CSRTs), the 
administrative review process established at Guantánamo in 2004.

As with justice, however, logic is in short 
supply in the executive’s approach to terror 
suspects, who have been deprived of the 
protections of the Geneva Conventions, tortured, 
coerced or bribed to make false confessions, and, 
essentially, designated as “enemy combatants” by 
Presidential whim alone, with the intention, in 
most cases, of holding them forever without charge or trial.

So here’s the problem: In Boumediene, the Supreme 
Court ruled that the habeas-stripping provisions 
of the MCA and its predecessor, 2005’s Detainee 
Treatment Act (DTA), which provided for limited 
review of the prisoners’ CSRTs, did not provide 
an adequate substitute for habeas, and instructed 
the lower courts to allow the prisoners’ habeas 
cases to proceed. This process is now underway, 
as I reported here, but those facing trial by 
Military Commission were not necessarily 
included, even though their cases involve the 
same problems relating to habeas, the DTA and the MCA as all the other cases.

On July 3, lawyers for Salim Hamdan, one of 20 
prisoners facing trial by Military Commission, 
raised this unresolved issue, filing legal papers 
asking District Judge James Robertson to delay 
the start of Hamdan’s trial, and arguing that he 
should be allowed to challenge his detention in a 
federal court, based on the Supreme Court’s 
Boumediene verdict. In a 46-page court filing, 
his lawyers wrote, “This case raises the question 
of whether the constitutional right to habeas 
corpus can be rendered illusory by subjecting an 
individual to an unconstitutional trial by 
military commission. Trying Hamdan under a 
dubious regime whose very legality has been 
called into question would reduce the legitimacy 
of the proceedings in this country and in the eyes of the world.”

Last Thursday, Judge Robertson heard oral 
arguments from government lawyers and from 
Hamdan’s civilian lawyer, Neal Katyal. Robertson 
and Katyal had met before. In 2004, in what the 
New York Times described as “a theatrically timed 
federal court injunction,” Judge Robertson called 
a halt to the Commissions, on the basis that the 
CSRTs did not reach the level of a “competent 
tribunal,” as demanded by the Geneva Conventions. 
He also ruled that, until a “competent tribunal” 
determined that Hamdan was not a Prisoner of War 
(PoW), as defined and protected by the Geneva 
Conventions, he had the right to be tried under 
the same judicial system as US soldiers, and 
added that, even if he was determined not to be a 
PoW, the Military Commissions as they stood were 
inadequate and would not be allowed to proceed 
until their rules were revised to accord with the 
federal laws governing the trial of soldiers. In 
a final blow to the administration, Judge 
Robertson specifically addressed Hamdan’s 
detention in Guantánamo, ruling that he was not 
to be held indefinitely in solitary confinement 
and should be returned to the rest of the prisoner population.

This was a significant victory for Hamdan, of 
course, and although it only lasted until July 
2005, when it was overturned by the Court of 
Appeals, that decision ultimately led all the way 
to the Supreme Court, where Hamdan gained his 
second victory in June 2006, in Hamdan v. 
Rumsfeld, the ruling that finally derailed the 
first version of the Commissions.

Last week, however, Hamdan’s run of significant 
court victories came to an end, after a two-hour 
hearing with Judge Robertson in which both sides 
put their cases. Defending the process, and 
Hamdan’s eligibility for the trial, lawyers for 
the government said, as the Christian Science 
Monitor explained, that the Commission process 
“was created by Congress and features an 
impartial judge and jury, as well as a ‘full 
panoply’ of trial rights.” In a court filing, 
Justice Department lawyer Alexander Haas 
declared, “Such rights for an alien charged with 
war crimes are utterly unprecedented and far 
exceed the protections given to the defendants 
[in prior war crimes tribunals].”

In response, Neal Katyal’s brief stated, “The 
Government notes that the public has a strong 
interest in the prompt, effective, and efficient 
administration of justice. Hamdan could not agree 
more. But 
 rushing to try him just weeks after 
the Supreme Court has upended the foundations for 
his commission and acknowledged his right to 
habeas will lead to confusion, inefficiencies, 
and uncertainty.” He added, “All he wants is a 
fair trial. If individuals merely being detained 
have a right to challenge their detention, then 
detainees who are set to be tried must have an 
even stronger right to challenge a trial that may 
result in life imprisonment or death.”

Judge Robertson, however, had other ideas. Siding 
with the government, who had also declared, “The 
purpose of constitutional habeas is to test the 
legality of detention, not to challenge a trial 
in advance” (even though there were obvious 
chicken-and-egg conclusions to be drawn from the 
statement), Judge Robertson agreed that, under 
the terms of the MCA, Hamdan’s lawyers were 
required to wait until a verdict was reached in 
the trial before raising constitutional 
challenges. Curiously, however, he made no 
mention of how ironic it was that he had ended up 
defending a much-criticized piece of legislation 
that had only come about because of the Supreme 
Court’s dismissal of the original Commission 
system in which he, of course, had played a major part.

And so, on Monday, despite having twice secured 
significant legal victories, Salim Hamdan was 
brought from his cell to face the first full US 
war crimes trial since the Second World War. 
Noticeably, however, the administration refrained 
from trumpeting the proceedings as the 21st 
century’s answer to the Nuremberg Trials, even 
though comparisons with the Nazi war trials have 
often featured in the government’s rhetoric.

Perhaps this was because of 
<http://www.counterpunch.org/worthington05172008.html>Col. 
Morris Davis. The Commissions’ former chief 
prosecutor, Col. Davis resigned in October 2007, 
complaining that his superiors had politicized 
the process, and explaining that he could not 
continue in his job because he refused to take 
part in trials that allowed evidence obtained 
through torture. In February 2008, Col. Davis 
reported that, during a discussion of the 
Nuremberg Trials with the Defense Department’s 
chief counsel William J. Haynes II, in which 
Davis noted that there had been some acquittals, 
which had “lent great credibility to the 
proceedings,” Haynes 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.”

Or perhaps it was because, in the absence of 
Adolf Hitler, Nuremberg’s convenors did not 
respond by putting one of his drivers on trial instead.
The government alleges that Hamdan was more of a 
player in al-Qaeda than merely part of the motor 
pool, and it’s possible, I suppose, that his 
trial will reveal who is telling the truth. More 
likely it will reveal more about the sleep 
deprivation (50 days straight) that Hamdan 
endured, the sexual humiliation, the prolonged 
isolation, and the cruel effect of all this 
treatment on his mind, as well as more about an 
explosive revelation by the former FBI 
interrogator and “al-Qaeda expert” Ali Soufan, 
who explained on the trial’s second day that 
Guantánamo, as the Associated Press described it, 
“is the only place in the world where he has not 
informed suspects of a right against 
self-incrimination.” “The way it was explained to 
us,” Soufan said, “is Guantánamo Bay is an intelligence collection point.”

Judge Allred, presiding over the case, has 
already stated that he will rule out testimony 
obtained coercively while Hamdan was held in 
Afghanistan, but it seems unlikely that he will 
be able to explain how Hamdan’s treatment in 
Guantánamo was justified -- and how it continues 
to be justified. It also seems unlikely that 
Judge Allred will be able to explain why, after 
being imprisoned for almost as long as the Second 
World War, Salim Hamdan is not in fact a Prisoner 
of War, protected from sleep deprivation, sexual 
humiliation, prolonged isolation and sustained 
interrogation by the Geneva Conventions, and 
entitled to ask, as a prisoner who can be held 
until the end of hostilities, if it is really 
feasible for the government to declare that it is 
engaged in a “war” that might last for generations.

This, I think, is the conversation we should be 
having, but it will clearly not happen until 
something else forces the collapse of the 
administration’s foolish and unjust substitute for a fair trial.

Andy Worthington is a British historian, and the 
author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk. 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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