Guantánamo Naval Base

New Legal System Presents Problems for Prosecutors
The government faced several legal hurdles during Salim Hamdan’s hearing yesterday, each highlighting critical flaws in the new system created to try terror suspects by military commission.

Hamdan is accused of acting as Osama bin Laden’s personal bodyguard and driver. He is charged with conspiracy and providing material support to terrorists in Afghanistan. The defense moved to dismiss both charges yesterday on ex post facto grounds. The ex post facto prohibition is a fundamental rule of criminal law, prohibiting prosecution for conduct occurring before passage of the law making the conduct a crime.

Defense counsel Joseph McMillan focused his arguments on the Military Commissions Act (“MCA”), the law governing the proceedings at Guantánamo Bay. The MCA allows prosecutions for twenty-eight enumerated crimes. Many of these crimes are restatements of traditional law of war offenses triable before military tribunals. But conspiracy and providing material support for terrorism are not traditional law of war offenses, as McMillan pointed out. They are both set forth as crimes in the MCA, but the MCA was not enacted until 2006, four years after Hamdan was captured. McMillan argued it would violate the ex post facto prohibition to prosecute Hamdan for 2001 conduct not made prosecutable before military commissions until 2006.
In response to McMillan’s arguments, the prosecution appeared to struggle for examples of conspiracy and material support cases that have been tried by military commission, ultimately relying on opinions dating back to the Civil War and World War II – opinions that were considered and rejected by the Supreme Court when Hamdan challenged the pre-MCA commissions process in 2002. So the prosecution was cornered into disagreeing with a Supreme Court ruling in Hamdan’s very case. Later in the hearing, the government did its best to sidestep an unanticipated question by the judge, Navy Captain Keith Allred, asking when the hostilities with al Qaeda began. The government has charged Hamdan with participating in a conspiracy that dates back to 1996, but the military commission only has jurisdiction over crimes arising during “armed conflict.”

Watching the government dodge and weave, I reminded myself that conspiracy and material support are both recognized offenses under federal criminal law. Had the government chosen to prosecute in Hamdan in federal court, the defense would have no basis for ex post facto arguments. So why opt out of federal court? And, if pre-existing federal laws already criminalize these terrorist offenses, what is the purpose of the military commission process at Guantánamo Bay?
Once the government makes it past the jurisdictional hurdle, the military commission rules are more lenient than the rules at play in federal court. Much more lenient. In fact, they permit prosecutors to ignore basic principles of due process by permitting the introduction of hearsay evidence (which violates the accused’s right to confrontation) and coerced testimony (which violates the right to due process). So prosecutors can build their cases around statements supposedly made by witnesses who need never appear in court, and on confessions that were involuntarily made.
The government cannot protect the public and prevent future attacks without interrogating and prosecuting terrorist suspects. But its justice system must also meet basic standards of fairness. Allowing the introduction of coerced evidence during military commission trials will only validate and perpetuate the use of torture and cruel treatment. If you think the CIA’s torture of terrorist suspects is in the past, think again. Waterboarding may not be part of the current CIA program, but the CIA, Attorney General Mukasey and the White House have not ruled it out as a future interrogation technique. And wholly apart from waterboarding, there are other cruel and coercive interrogation techniques still in the CIA’s portfolio.
High Value Detainees and Other Evidence “Wrapped up in Secret Tape”
Hamdan has maintained his innocence from the outset. He claims he never joined al Qaeda and never fought anyone; he was just a driver in bin Laden’s motor pool. But the government may be misusing its power to classify evidence to prevent Hamdan from putting on his defense.

The defense renewed a request yesterday to interview seven other Guantánamo detainees who they believe may corroborate Hamdan’s story and exclude him from planning or executing the 9/11 attacks. Each of those witnesses falls into the government-created category of “high value” detainee. Army Lieutenant Colonel Will Britt called them “notorious terrorists” who do not know or appreciate U.S. law and will eagerly reveal information that threatens U.S. national security if given the chance. Britt also said the defense had failed to show how the witnesses were relevant and material to their case.

The prosecution rejected every proposal for compromise, including (1) defense counsel’s offer to conduct interviews with a security representative present and not to ask questions about interrogation techniques, and (2) Judge Allred’s proposal to develop written questions and screen the answers before sending them to the defense. Judge Allred said he would take the matter under consideration, but he also signaled his dissatisfaction with the government’s position, asking whether any of the proposed witnesses were “lower high-value detainees” or whether they were all “equally wrapped up in secret tape.”

The government also objected to a defense motion to interview witnesses who were present during an early interrogation of Hamdan that was videotaped. The defense anticipates filing a motion to suppress Hamdan’s statements and requested interviews with the witnesses to investigate whether Hamdan’s statements were coerced. But the government claimed it needs to protect its soldiers still in the field and said it would allow the defense to speak only with one witness of the government’s choosing. Inexplicably, the government also opposed Judge Allred’s proposal to shield the identity of the witnesses by having them make anonymous phone calls to defense counsel, claiming that production of the videotape was sufficient, and the witnesses had no exculpatory information to provide.

More intransigence emerged during a conversation about interrogation and confinement records. Initially, the government agreed to provide Hamdan with records of his own conditions of confinement – with the caveat that it had “lost” Hamdan’s interrogation notes from 2002. But later in the hearing the government backed off its agreement and said it wanted to brief the issue. Then the government remarkably claimed it was “not aware” whether Hamdan had even been questioned (by the government itself) during a two-month period following his capture and said prosecutors would have to check.

In Wednesday’s blog, I discussed the Classified Information Procedures Act (“CIPA”), which sets forth clear rules for the discovery and admission of classified evidence in federal criminal cases, and provides courts with leverage to encourage government cooperation. But CIPA doesn’t apply to military commissions, so Guantánamo judges have to make up the rules as they go. Yesterday it seemed the government was trying to use the general atmosphere of confusion and uncertainty to its advantage. Hiding behind the cloak of classification, claiming ignorance of likely interrogations, and invoking its own concept of “high value” detainees, the government batted down every defense request for discovery and every proposal for compromise by the judge.
There undoubtedly are legitimate national security issues that must be grappled with seriously and in good faith by all parties in these proceedings. But the government’s conduct yesterday makes one wonder how much of its concern reflects a fear that sensitive national security information will be disclosed, and how much reflects a fear of what the defense may learn. At a press conference following the hearing, defense counsel Charles Swift said it “seems hard to have a full and fair trial when the people who absolutely know the answers aren’t going to be asked the questions.” Indeed it does.

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Published on February 8, 2008

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