Salim Ahmed Hamdan and Col. Morris Davis, v. 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.

Guantánamo Bay, April 28, 2008: Prosecutors and criminal defendants rarely see eye to eye. But defendant Salim Ahmed Hamdan and former chief prosecutor Morris Davis agree on one thing: The military commission system is fundamentally flawed, and justice in Guantánamo is near impossible.

Mr. Hamdan

This is my second trip to Guantánamo to observe Mr. Hamdan’s case. I came to a pretrial hearing in February 2008, and I returned this week to listen to Mr. Hamdan’s defense counsel argue their motions to dismiss and suppress.

Mr. Hamdan, a 36-year old Yemeni citizen, was captured in Afghanistan in November 2001 and has been detained at Guantánamo for nearly six years. He is not charged with any offenses connected to the September 11 attacks and, in fact, the government acknowledges that he did not play any role in planning or executing those attacks. Rather the government accuses Mr. Hamdan of joining al Qaeda, working as Osama bin Laden’s personal driver and armed bodyguard, and transporting missiles for use against American soldiers.

Mr. Hamdan’s lawyers acknowledge that he worked as bin Laden’s driver, but they say he was never a member of al Qaeda and never conspired to engage in any terrorist acts.

Today Mr. Hamdan became the fourth Guantánamo prisoner to question the legitimacy of the military commission system and to refuse to participate in the proceedings against him. (The other prisoners who have rejected the system are Ahmed al Darbi, Mohammed Jawad, and Ibrahim al Qosi). Mr. Hamdan’s refusal to participate was relatively short lived – he returned to the courtroom after a lengthy lunch break and agreed to remain there. But the words he used this morning to condemn the system could not have been clearer:

The animal has rights or not? My question is the animal has rights or not, but the human being doesn’t have rights… I’m detained and I don’t have any rights. You tell me about the law. Where is the law? You tell me the law has changed. Where is the law? I refuse to participate in this. I refuse the lawyers on my behalf. And I refuse the lawyers to speak outside my presence.

At a press conference following today’s hearing, Mr. Hamdan’s lawyers said their client has no confidence in a just result. And no wonder. Up to this point, victory has done Mr. Hamdan virtually no good. In 2006, his case against the first military commission system established by President Bush made it all the way to the Supreme Court, where he won. The Supreme Court held that the military commissions violated international and U.S. military law. Following the Supreme Court’s decision, Congress established a new system under the Military Commissions Act of 2006 (“MCA”). Shortly thereafter, Mr. Hamdan’s original habeas petition was dismissed and Mr. Hamdan was transferred—with no explanation—from a medium-security facility to solitary confinement, where he has remained ever since. For the past sixteen months, Mr. Hamdan has had practically no human contact and little access to natural light and air. So it should come as no surprise that he is asking “where is the law?”

Colonel Morris Davis

Mr. Hamdan’s critique was not the only indictment of the military commission system we heard today. In a highly anticipated appearance this afternoon, former chief prosecutor Colonel Morris Davis testified on behalf of the defense, stating that the system is politically rigged to achieve convictions at all costs.

Col. Davis served as the chief prosecutor for the office of military commissions for just over two years until submitting his resignation in October 2007. He has spoken publicly about the flaws in the system many times since then, and most of the allegations he made on the stand today had already been reported in the press.

But his testimony was remarkable nonetheless. Until several months before he resigned, Col. Davis was a staunch defender of the military commission system. In fact, in June 2007, he published an op-ed in the New York Times in which he called Guantánamo “a clean, safe and humane place for enemy combatants” and stated that “the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes.”

Col. Davis also has no qualms about the case against Mr. Hamdan. He stated today that he participated in writing the charges against Mr. Hamdan and believes those charges are “warranted by the evidence.”

And yet this former chief prosecutor took the stand and testified under oath on behalf of Mr. Hamdan. He subjected himself to cross-examination by the new chief prosecutor; he endured questions about his conduct with former employees who were sitting in the courtroom and remain on the Hamdan case; and he opened himself to public scrutiny and the judgment of the court.

Col. Davis did this because he believes the military commission system will never achieve just results. He delivered a scathing two-pronged attack: He criticized the government’s apparent willingness to rely on tortured evidence, and he stated that the system is being run by politically-motivated administration appointees who have repeatedly attempted to interfere with the professional judgment of the chief prosecutor and the members of his staff. The MCA prohibits any “person” from attempting to coerce or influence the prosecution or defense.

Col. Davis provided multiple examples of potentially unlawful interference, not all of which I will repeat here. According to Col. Davis, the pressure to charge “sexy” cases and win trials against defendants “with blood on their hands” began the day he interviewed for the job of chief prosecutor in August 2005. During the interview, Col. Davis says he told then-Department of Defense General Counsel William Haynes that the military commission trials “are historic. These trials will be the Nuremburg of our time. If there are some acquittals that would perhaps not be a bad thing.” Col. Davis says Mr. Haynes became visibly agitated at the mention of acquittals and stated: “We can’t have acquittals. We’ve been holding these guys for years. We can’t have acquittals. We’ve got to have convictions.”

Not only were administration officials concerned about winning convictions, but according to Col. Davis, various officials also saw political value in filing charges before the mid-term and presidential elections. At a meeting in September 2006, Col. Davis says Deputy Secretary of Defense Gordon England told him that “there could be some really strong political value in charging some of the high value detainees before the election.” The following summer, in July 2007, Col. Davis says legal advisor Brig. Gen. Thomas Hartmann told him to “get the train rolling” before the presidential election and stated: “If you get the 9/11 guys charged , it would be hard for the next president to stop the process.”

Col. Davis painted an ugly picture of legal advisor Hartmann, describing him as someone who “took micromanagement to the nano-management level” and expressed strong disagreement with Hartmann’s direction to offer tortured statements into evidence and to leave decisions regarding admissibility up to the judge.

Col. Davis eventually became so exasperated that he filed a formal complaint alleging undue influence on the office of the chief prosecutor by legal advisor Hartmann. The complaint led to an investigation, now known as the “Tate Investigation,” which ended in a report clearing Hartmann of misconduct, but advising officials to set forth a chain of command for the office of the chief prosecutor. Col. Davis resigned the day after learning he would be reporting to DOD general counsel William Haynes.

Col. Davis is not the only military commission prosecutor to have resigned. In fact, four others preceded him—Major Robert Preston, Captain John Carr, Captain Carrie Wolf, and Colonel Stuart Couch—making the same allegations of political interference and pressure to rely on coerced evidence.

***

Mr. Hamdan’s lawyers are planning to argue six additional legal motions on April 29, after which Mr. Hamdan’s trial is officially scheduled to begin on May 28, 2008. But listening to Mr. Hamdan and Col. Davis today, I could not help but question whether there will ever be any trials here, or whether the military commission system will eventually collapse under its own weight.

Today I attended hearings in the case of United States v. Salim Ahmed Hamdan. But the real defendant was the military commission system itself. In the case of Salim Ahmed Hamdan and Col. Morris Davis v. Military Commissions, the military commission system was convicted beyond a reasonable doubt.

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Published on April 29, 2008

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