The Constitution (choose one) does / does not apply at Guantánamo

Frank Kendall – Human Rights First volunteer consultant – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. He is providing updates of what he observes.

Guantánamo Bay, July 16, 2008: The major event of the day at Guantánamo was Judge Allred’s decision to deny Salim Hamdan’s motion to dismiss the conspiracy and material support to terrorism charges against him. This motion was based on the contention that the Military Commissions Act of 2006 (MCA) violates the ex post facto clause of the Constitution. This clause prohibits Congress from making actions criminally punishable after they have already been committed.
Prior to the Supreme Court’s decision in Boumediene v. Bush last month, Judge Allred would have had an easier task. Before that decision, the Constitution was not being applied here. By finding that Guantánamo detainees have the right to bring habeas corpus petitions in federal court, Boumediene opened the door to other constitutional claims, such as the ex post facto claim denied today. Judge Allred found that Congress had addressed this issue in passing the MCA, and he essentially deferred to Congress’ judgment. He did seem to accept, however, that, after Boumediene, a constitutional legal analysis is required when a constitutional issue is raised by a party under the MCA. We have just begun to play this game.

At this point, the score seems to be tied: Constitution 1 (habeas corpus), No Constitution 1 (no ex post facto clause), but the game isn’t over. Judge Allred’s decision is certain to be appealed. Federal courts are not likely to be as deferential to Congress’ assertions that a law is not ex post facto. Under some circumstances, the prosecution has the right of immediate appeal to the Court of Military Commission Review (USCMCR), a unique military court set up under the MCA. The MCA denies the defense the right to make interlocutory appeals, so it does not have this option. Nevertheless the defense can be expected to appeal, first to the USCMCR and then to the federal District of Columbia Circuit Court, but only if—and after—Mr. Hamdan is convicted.

There are many more innings to play. Tomorrow the defense intends to argue four more constitutional issues: the right to a speedy trial (Mr. Hamdan has been in U.S. detention since Nov. 2001), admissibility of hearsay evidence (much of the government evidence will come from prior statements made by people who will not be in court), the right to a jury trial (the military commission members are all American officers and not a jury of Mr. Hamdan’s peers), the admissibility of evidence obtained through coercion (of Mr. Hamdan himself and other detainees), and freedom from self-incrimination (Mr. Hamdan has never to this day had his rights explained to him prior to an interrogation). The right to equal protection under the law (the MCA only applies to aliens), and the right to bring witnesses in one’s own defense (Mr. Hamdan wishes to have several high value detainees testify that he was not a member of al Qaeda and not aware of or involved in any attacks by al Qaeda on the U.S., but the government is refusing this request). None of these issues are likely to have their final resolution at the military commission level. It would be possible to design an entire Constitutional law curriculum around Mr. Hamdan’s case.

All of this could have been avoided if a well-established body of law, either federal criminal law, or perhaps the Uniform Code of Military Justice, had been applied to suspected terrorists captured in Afghanistan and elsewhere. In addition, Mr. Hamdan could have been assured of a fair trial, one that America could have been proud of. But here we are.

In other developments today, the government cross-examined the defense’s expert witness, Dr. Emily Karem, on her testimony that Mr. Hamdan suffered from post-traumatic stress disorder brought on by events he witnessed in Afghanistan after his capture and that his conditions of confinement, particularly isolation, made it very difficult for him to participate in his defense. She was also cross-examined on her testimony that sleep deprivation, isolation, and other forms of coercion were used to punish Mr. Hamdan and to coerce him into making self-incriminating statements.

This was followed by oral arguments on the defense motion to change the conditions of confinement for Mr. Hamdan and to provide multiple time credit for time served in isolation, which the defense asserts was in defiance of a federal judge’s order. The government denies that Mr. Hamdan has been in isolation, and asserts that the judge’s order was complied with by putting Mr. Hamdan in the same type of confinement as most other detainees at Guantánamo. The judge did not rule on this motion, but asked the government to provide information on options to improve Mr. Hamdan’s conditions.

The mere fact that the judge heard this motion and has asked for more information suggests a major change in the military commissions. Prior to Boumediene, there were several indications that the presiding military judges did not believe they had any authority over the treatment of detainees. In April 2008, for example, I witnessed a judge categorically refuse to assist a military defense counsel who was being denied access to her client. Judge Allred at least seems to believe he has some authority over Mr. Hamdan’s conditions of confinement.

Finally, the government presented the first six of approximately ten witnesses it is calling to rebut the defense’s allegation that Mr. Hamdan was coerced into making statements to interrogators. These witnesses have all been FBI special agents, with the exception of one Navy Criminal Investigation Service agent. While all have denied any acts of coercion, some have also corroborated elements of Mr. Hamdan’s testimony. Tomorrow, July 17th, the government will call the balance of its witnesses on this subject, oral arguments will be held on coercion, and the court will move on to the other motions listed above. It is going to be another long day in Guantánamo Bay, Cuba.

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Published on July 17, 2008

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