April 3, 2006 – Background: The Specter of Hamdan

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.

Priti Patel – 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.


April 3, 2006

Background: The Specter of Hamdan

Military commissions hearings continue this week for four men—Omar Khadr, Ali Hamza Ahmed Sulayman al Bahlul, Abdul Zahir, and Binyam Muhammad. Overshadowing the hearings are memories of the dramatic oral arguments last week in the U.S. Supreme Court in Hamdan v Rumsfeld, a case challenging the legality of the military commissions as currently constituted. Three cases, including Hamdan’s, have been stayed by the Appointing Authority in light of the legal challenge to the commissions, but the other seven, including the four slated for this week, are moving forward.

The arguments in the U.S. Supreme Court focused on a key issue that impacts the hearings this week. The Court spent quite a bit of time on whether conspiracy was actually a crime within the laws of war. Hamdan’s attorney, Neal Katyal, argued that the crime of conspiracy has been rejected as a violation of the laws of war in every tribunal to consider the issue since WWII. Conspiracy requires showing only the most minimal connection between the conduct of the accused and the actual harm – so, for example, a little old lady in Switzerland who donates funds to a charity later found to be supporting terrorists could face essentially the same criminal liability as a major player in a terrorist organization. For this reason, the charge has been rejected as a stand alone crime under the laws of war. Of the four men before the commissions this week, all are charged with conspiracy, and only two of them, Abdul Zahir and Omar Khadr, are charged with additional crimes. If the U.S. Supreme Court finds that the crime of conspiracy is not a recognized crime under the laws of war, the cases against two of those before the commissions this week would almost certainly fail, unless the United States was able to charge them with a different crime.

Given the Supreme Court’s obvious discomfort with commission proceedings (particularly evidenced in questioning last week by Justices Souter, Breyer and Kennedy), it would make a lot more sense for the Department of Defense to wait until the U.S. Supreme Court rules on the Hamdan case, by summer 2006, before moving forward and potentially causing irreparable harm to the rights and chances of successful prosecution of the men whose commission proceedings have continued.

Two other key events have occurred since the last commission proceedings took place at the end of February:

First, following the extensive criticisms of commissions for allowing in evidence obtained through torture and coercion, the Department of Defense, the night before oral arguments in the U.S. Supreme Court, issued the new Military Commission Instruction No. 10 (MCI 10), which renders evidence obtained through torture inadmissible. The new rule is welcome. But this is just a small step; a number of problems remain. According to the language in MCI 10, it is a statement of U.S. policy, not a legal right of the accused (as is the case for defendants in U.S. federal court and in courts-martial) and therefore the rule can be changed as easily as it was issued. Also, MCI 10 only prohibits evidence obtained under torture (narrowly defined in the new rule), not evidence obtained under any unlawful coercion as would be the case in a court martial or any standard U.S. criminal trial. And lastly, MCI 10 fails to address critical questions regarding its application. For example, it doesn’t explain the procedures for how a defendant can establish that a statement was made as a result of torture (or what burden of proof he has to meet to win on this claim – beyond a reasonable doubt, clear and convincing evidence?). The rule prohibits the prosecution from offering statements determined to result from torture, but it doesn’t appear to impose any duty on the prosecution to inquire whether statements it might introduce resulted from torture.

Second, the Supreme Court decided on Monday not to hear, for now, the case of U.S. citizen Jose Padilla, who had challenged the government’s authority to hold him in military custody without basic constitutional rights. After more than 3 years in a brig, the government finally charged Padilla with a crime late last year, so the Court concluded that it could avoid for now deciding the merits of his claim about unchecked executive detention in military custody. In the meantime, Padilla stands accused of providing material support to terrorists, and pretrial proceedings continue in the U.S. District Court for Southern District of Florida. Binyam Muhammad, who is accused of being part of the same conspiracy as Padilla, appears before the commissions this week. For the time being, Padilla now enjoys the full protection of the U.S. criminal justice system, including privileged communication with his attorney and the right to confront all of the evidence against him. Binyam Muhammad does not. Jess Bravin has a great piece on this issue in the Wall Street Journal.

The events of the past few weeks put the pre-trial hearings this week in a complicated context. I will keep you posted on what happens.

Published on April 3, 2006


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