Another Boycott at Guantánamo, Another Test for the Military Commission System
Deborah Colson – a lawyer at Human Rights First in the 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.
America tells the whole world that it has freedom and justice. I do not see that. . . There are almost 100 detainees here. We do not see any rights. You do not give us the least bit of humanity . . . Give me a just court. . . Try me with a just law.
—Salim Hamdan to Judge Keith Allred, Guantánamo Bay, April 29, 2008.
Guantánamo Bay, April 30, 2008: Salim Hamdan rejected the military commission process for the second time yesterday afternoon, asking that he be tried instead under a system of “just law.” Mr. Hamdan interrupted a pretrial hearing during which the parties were mired in technical legal arguments to plead with the judge to take a step back and evaluate the integrity of the process. His words were powerful and eloquent. He questioned why the government is trying him in a made-up system pursuant to made-up rules. And he observed that, even when he wins, he loses because the government repeatedly changes the rules midstream:
If you ask me the color of this table, I will tell you it’s white. You say, “it’s black.” I say, “no, it’s white.” You say, “no, it’s black.” I say fine, “it’s black.” You say no, it’s white.” This is the American government.
It is impossible to know why Mr. Hamdan finally gave up on the system yesterday after having cooperated with his attorneys and the court for so long. He made a less rigorous attempt to boycott on Monday morning, but eventually decided to stay. And he came to court yesterday morning dressed in a blazer and willing to listen. But he returned yesterday afternoon wearing his prison garb and waiting for an opportunity to address the judge: “May I speak to you for two minutes,” he said. “You did not ask me why I changed my clothes. Do you care to know?” Then Mr. Hamdan told the judge he had decided to boycott the trial and that he refused to have his attorneys speak for him in his absence.
At a press conference after the hearing, one of Mr. Hamdan’s lawyers said that seven years of confinement and the several rounds of wins and losses have left Mr. Hamdan feeling increasingly frustrated and depressed.
Some of the government’s arguments yesterday triggered a critique from Mr. Hamdan. At one point, the Department of Justice prosecutor John Murphy accused the defense team of basing its legal arguments on inapplicable laws—the Uniform Code of Military Justice, international law, and the United States Constitution. “This is not a military court-martial or a criminal prosecution in federal court,” said Mr. Murphy. “Here, we are in a wartime court.” And in this wartime court, he explained, the Military Commissions Act (MCA) applies. When Mr. Hamdan spoke, he sarcastically referred to the MCA as a “special law” and a “new law” that was “delivered” to Guantánamo from the halls of Congress. It is “the law of the American government, not the law of the United States.”
Both men are partially correct. The MCA does govern the military commission system. But the MCA is also a new law that was “delivered” to Guantánamo five years after Mr. Hamdan’s arrest. When Mr. Hamdan was captured in 2001, the MCA did not yet exist. The statute was not passed until 2006, following Mr. Hamdan’s victory before the Supreme Court in which he objected to the first military commission system, and the Court threw the system out.
Judge Allred told Mr. Hamdan that he should have “great faith in American law” given his Supreme Court victory. “You beat the United States once in our system with these attorneys who are with you today” said Judge Allred. “You won.”
“I didn’t win the case,” responded Mr. Hamdan.
Though the Supreme Court did rule in Mr. Hamdan’s favor, Mr. Hamdan’s perceived loss makes perfect sense. He was not released after the Supreme Court’s decision. Instead Congress enacted the MCA, and the government re-charged Mr. Hamdan under the new law.
Mr. Hamdan questioned the government’s decision to re-charge him under the MCA. He asked why the government created a military commission system when it could have tried him in an ordinary criminal court. And he asked why the attorneys and the court had spent so many months debating the meaning of the MCA when American law and international law could be applied.
Mr. Murphy invoked Mr. Hamdan’s “alien unlawful enemy combatant status” to justify the use of the military commission system and the application of the MCA. At “historic moments in our history,” said Mr. Murphy, “unique rules” must apply.
The years since the September 11 attacks undoubtedly are a unique period in this nation’s history. But prosecuting terrorist suspects is nothing new. In fact, dozens of terrorism cases were successfully prosecuted in United States federal courts prior to September 11, and dozens more have been prosecuted there since. Just fifteen men at Guantánamo have been criminally charged, and no military commission trials have even been held. Given that track record, Mr. Hamdan’s request to be tried in civilian court sounds like a much more promising idea.
Mr. Hamdan continued to boycott the proceedings this morning and refused even to appear in court. He is now the fourth Guantánamo prisoner to reject the military commission system. Recent accusations of political interference with the prosecutorial function, the MCA’s provisions authorizing the admission of coerced evidence, and the never-ending delays in prosecution are just several reasons why public confidence in the military commission system is at an all-time low. But there is no question it is bound to sink even lower if the government ends up trying a row of empty chairs.