Another Hearing at Guantánamo, Another Day of Government Policies on Trial

HRF attorney Sahr MuhammedAlly is traveling to Guantanamo to observe the Hamdan hearing. Here’s her report:

December 3, 2007: The usual reporters and non-governmental organizations are
traveling from Andrews Air Force Base to Guantánamo Bay, Cuba to observe the military commission hearing of Yemeni national Salim Ahmed Hamdan. Hamdan has
been charged with providing military support to terrorists in Afghanistan and conspiring to aid terrorism. He is accused of serving as a bodyguard and personal driver for Osama bin Ladin.

This is round two for Hamdan. Back in June, Judge Navy Captain Keith J. Allred dismissed the charges against Hamdan on jurisdictional grounds, concluding that the military had not found him to be an “unlawful enemy combatant.” A Combatant Status Review Tribunal (CSRT) had found him to be only an “enemy combatant.”

The government asked the judge to reconsider. Judge Allred obliged, noting that “the interests of justice are served by reopening the hearing” to determine whether the commission trial may get underway. The judge relied on a September 24 ruling by the Court of Military Commission Review (CMCR), created shortly after the June
ruling, which held that a military judge is authorized to decide the jurisdictional issue by deciding whether the individual’s status should be deemed “unlawful.”

As I am preparing to leave, I scan the newspapers and read about terrorism prosecutions in the civilian system underway in Florida and New York—cases involving conspiracy and material support for terrorism. Yet I am traveling to observe the prosecution of these same charges in a military court rather than the civilian court system. This is one of the many concerns regarding the policy choices made by the government in its prosecution of the “war on terror.”

GTMO: Never a Dull Moment

Events at Guantánamo continue to capture headlines. One just never knows what to expect. On November 7, we learned that the prosecution in 21-year-old Omar Khadr’s case shared exculpatory evidence with the defense only two days prior to his arraignment when, at the same time, it was Wikileaks posted a confidential 2003 Camp Delta Standard Operating Procedures (SOP), which showed that, prior to 2004, military officials had a policy of denying detainees access to independent monitors from the International Committee of the Red Cross (ICRC). The manual said one goal was to “exploit the disorientation and disorganization felt by a newly arrived detainee,” by preventing them access to the ICRC. Some detainees had no contact of any kind with the ICRC, not even delivery of ICRC mail. A few lucky ones were allowed unrestricted access, but others were permitted only physical exams with “no form of communication.” In 2003, the ICRC publicly criticized the indefinite detention of detainees in Guantánamo and, in a confidential report, which was later leaked, found evidence of physical and psychological mistreatment of detainees.

This past weekend we learned that the military judge in the Khadr case has prohibited defense lawyers from disclosing the identity of all prosecution witnesses to their client. This will severely hamper Khadr’s ability to adequately defend himself. Protecting the identities of some witnesses in civilian court system has been done, but not the entire list of prosecution witnesses. Moreover, despite the government’s claim that the military proceedings are open to the public, except when classified information will be presented, we are now learning that lawyers are making some critical legal arguments in e-mail exchanges with the judge outside of public scrutiny.

December 5
I wonder what is in store for us on December 5. The government may present evidence of Hamdan’s alleged activities in Afghanistan in support of his enemy
combatant designation. Almost six years later, neither the detainees nor the public have seen the primary evidence that forms the basis for detaining the 305 individuals left at Guantánamo (down from 700 plus in 2002).

December 5 is actually quite a busy day. In addition to the Hamdan hearing, the U.S. Supreme Court will hear oral arguments in Boumediene v. Bush. Boumediene challenges the constitutionality of the Military Commissions Act of 2006 (MCA), which expressly revoked the right of Guantánamo detainees to bring habeas corpus petitions. Another event of interest will be the sentencing of Jose Padilla. Padilla was held incommunicado as an enemy combatant in military custody for three and a half years before being transferred to civilian court and convicted of providing material support for terrorism. Question: if Padilla was prosecuted in the civilian court system for material support of terrorism then why isn’t Hamdan, who is charged for the same offense, also being tried in a civilian court?

So back to December 5th. We will not only see the various puzzles of the government’s prosecution in the “war on terror,” but U.S. policies post September 11 will again be on trial.