All in a Day’s Work: Day Two of Salim Hamdan’s Status Determination Hearing

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.

Sahr MuhammedAlly – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

—
December 6, 2007
All in a Day’s Work: Day Two of Salim Hamdan’s Status Determination Hearing
Guantánamo Naval Base, Thursday, Dec. 6: The military commission hearing of Salim Hamdan highlights yet another issue about what’s wrong with Guantánamo: a hearing involving an individual’s liberty is beholden to the logistical difficulties of transporting witnesses, defense counsel, prosecutors and judges, to this remote location. The hearing also showcased that, despite being a judicial proceeding, Washington and not a judge will have the final say on issues such as access to detainee witnesses.

At record-breaking speed, Salim Ahmed Hamdan’s enemy status determination hearing was conducted. During the two-day marathon session, Navy Judge Keith Allred heard the prosecution’s evidence in support of its contention that Hamdan is an “unlawful enemy combatant,” and defense counsel’s arguments why Hamdan should be considered a POW under the Geneva Conventions and therefore not subject to the jurisdiction under the Military Commissions Act (MCA).

Day two started at 9:00 a.m. and ended at 11:30 p.m. Using one interpreter (the second was dismissed due to competence issues), Judge Allred heard detailed testimony from five witnesses as well as closing arguments—all in one day.

The Evidence
Military prosecutors featured an eye-witness account of Hamdan’s capture in Afghanistan, showed a video clip of Osama bin Laden and Hamdan at an Eid-ul-Fitr event, and introduced Hamdan’s confession that he drove bin Laden to safety following the events of September 11. The prosecution’s witness also suggested that at the time of Hamdan’s capture two missiles were found that belonged to Hamdan. No evidence was presented showing that Hamdan had any operational knowledge of the USS Cole bombing, Kenya embassy bombings, or September 11.

The defense and Said Boujaadia’s counsel, a detainee at Guantánamo, succeeded in obtaining testimonial immunity for Boujaadia. As I reported on December 5, Boujaadia was cleared by an Administrative Review Board in 2006, but the government delayed his release when Hamdan’s counsel expressed interest in Boujaadia’s testimony. Defense counsel had refused to place a hold on Boujaadia and had pushed for immunity in exchange for his testimony. Boujaadia was captured on the same day as Hamdan and had apparently told U.S. military officials that there were missiles in the back of a white van driven by two Egyptian militants who had picked him up while he was hitchhiking. At the hearing, Boujaadia testified under immunity that he saw Hamdan in a holding cell in Afghanistan but did not affirm whether he saw missiles in the van. Instead, when pressed by the defense, he said he saw “dates.” Furthermore, when asked by defense counsel how he was treated by the U.S. military, Boujaadia replied, “don’t ask me that question.” He later said that he was “treated fine.” Boujaadia awaits his return to Morocco.

In support of its position that Hamdan is a POW, the defense offered an expert witness, who testified at length about the two arms of al-Qaeda— al-Subah, which is involved in terrorist operations, and the Arab fighters in Afghanistan, known as the 055 International Brigade, who were involved in jihad in Bosnia, Chechnya, Kashmir, and who fought with the Taliban against the Northern Alliance. The 055 International Brigade, as described by the witness, was supported by Osama bin Laden, wore uniforms, had a command structure, followed the laws of war, and did not engage in terrorist activities. The defense showed a videotape of Hamdan in combat fatigues along with the Arab fighters.

Critical documentary evidence labeled “secret” was marked for identification but withheld from Hamdan and the public. The judge stated that he would consider whether the “secret” documents may be admitted into evidence. They include a DVD showing the interrogation of Hamdan in Afghanistan, a transcript of the interrogation, and an additional transcript (the subject matter of which was not made public) which was provided to the defense by the prosecution but submitted by the defense for admission.

Defense Witnesses
In my blog on December 5, I reported on the judge’s order regarding production of defense witnesses. On December 6, the defense requested a continuance of the hearing and made a motion to reconsider witness Nasser al-Bahri’s statement for admission (Hamdan’s brother in law) in light of the testimony of two government witnesses who testified to events dating 1995-1999. Judge Allred agreed to hear from al-Bahri and ordered the defense to call him in Yemen that night and arrange for his testimony via telephone. Given that it was 4:00 a.m. Yemen time, the defense asked for a continuance. Judge Allred refused citing the logistical issues in conducting hearings at Guantánamo and ordered the defense to call his witness. After a short recess, Judge Allred changed his mind and instructed the defense and prosecution to stipulate to al-Bahri’s testimony and submit it for consideration.

The defense also asked Judge Allred for a continuance to arrange for the testimony of detainee Abdul Rahim al-Sharqawi. Counsel was provided access to Sharqawi late in the evening on December 5, but counsel stated that, upon meeting Sharqawi, he learned that Sharqawi is represented by habeas counsel and stopped his interview. Defense counsel explained that his ethical duties prevented him from interviewing Sharqawi without counsel present and informed the court that Sharqawi’s habeas counsel could travel to Guantánamo the following week to represent his client. One would think that this is the norm—one cannot speak to an individual who could incriminate himself without his counsel present— but not at Guantánamo. The Assistant U.S. Attorney objected to the continuance stating that the “U.S. government does not recognize habeas counsel for purposes of the commission proceedings.”

Judge Allred instructed the parties to “work this out” and did not state whether Sharqawi should have the right to consult with habeas counsel prior to or during the interview with Mr. Hamdan’s lawyer. This is just another one of the quandaries about Guantánamo. What is normal practice in the civilian and military justice systems is not applicable at Guantánamo.

Finally, I would like to note that the U.S. government consistently maintains that the Constitution and other federal laws are inapplicable to Guantánamo. This has allowed the government to strip detainees of the right to habeas corpus, right to counsel, and to seek recourse from ill-treatment. But at Guantánamo I happened to notice that the government applies the Endangered Species Act to the naval base. The act outlines how iguanas must be treated (a 25 mph speed limit is strictly enforced to avoid road kill) and anyone can be fined upto $10,000 and prosecuted if caught harming an iguana. For the 300 human detainees, however, there are no such federal laws to protect their rights.