Today’s Score From Guantánamo: Constitution – 1, No Constitution – 3

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 17, 2008: It now appears almost certain that Mr. Hamdan’s military commission trial will begin next week. In federal district court today, Judge Robertson ruled that he would not stay the trial, which is scheduled to begin next Monday. Meanwhile, in Guantánamo, Judge Allred continued to hear evidence and arguments on pre-trial motions, including several that raise constitutional issues.

As I write at 5:00 p.m., the score on whether the Constitution applies at Guantánamo now stands at Constitution – 1 (habeas corpus), No Constitution – 3 (ex post facto is not violated by the Military Commissions Act (MCA), equal protection is not available to unlawful enemy combatants, and hearsay evidence is admissible at the judge’s discretion). Arguments were also heard today on the right to a speedy trial and the right to a jury trial.

Yesterday Judge Allred ruled that the ex post facto clause of the Constitution was not violated. He did not rule that it was inapplicable to Guantánamo. The current administration has done its best to keep Guantánamo a law-free zone, particularly a Constitution-free zone. The Boumediene ruling, and the three Supreme Court rulings that preceded it, have left this approach wounded but far from dead. Today Judge Allred breathed substantially more life into it.

This morning Judge Allred ruled that the equal protection clause does not apply to alien unlawful enemy combatants at Guantánamo. He did not address the central issue: whether Congress could make an act criminal and triable by military commission only for aliens and not for U.S. citizens, thus denying aliens the equal treatment of similarly-situated U.S. civilians in a trial that has nothing to do with their citizenship status. (Note that this inequity could be rectified, either by making U.S. citizens who are designated unlawful enemy combatants subject to the MCA or by extending the same criminal protections to aliens as to U.S. citizens).

Judge Allred’s ruling was that the “pragmatic considerations and exigent circumstances” associated with enemy combatants at Guantánamo have sufficient weight to take them outside the protection of the equal protection clause. Specifically, relying on Boumediene and other cases cited by the government, he considered six factors and concluded that they all weighed against extending equal protection to Guantánamo. The factors are as follows:

1. The citizenship and status of the detainee and the adequacy of the process by which that was determined: Following an evidentiary hearing, Judge Allred previously concluded that Salim Hamdan was an unlawful enemy combatant.

2. The site of apprehension and detention; Afghanistan and Guantánamo respectively: Citing Boumediene, Judge Allred found that this weighs against applying the Constitution.

3. Practical considerations and exigent circumstances: Judge Allred noted that the U.S. does not wish to provide unlawful combatants with the same protections afforded lawful combatants. He found that international law distinguishes between unlawful and lawful combatants to encourage compliance with the laws of war. He concluded that this weighs against extending constitutional protection.

4. Adequacy of the alternative right provided: In this case, the alternative right is trial by military commission. Judge Allred concluded that, although military commissions deny some constitutional rights, they are an adequate alternative.

5. Necessity of applying equal protection to prevent injustice: Judge Allred found that trial by military commission is not an injustice that requires extending the equal protection clause to Mr. Hamdan.

6. Would application of the equal protection clause be impractical or anomalous?: Judge Allred concluded that extending protections to people who have already been found to be alien unlawful enemy combatants would be anomalous. Other people may deserve these protections, but not alien unlawful enemy combatants. He also stated that it would reduce compliance with the laws of war if unlawful combatants received the same legal protections as lawful combatants.

Well. The essence of this is that if a military judge determines that someone is an alien unlawful enemy combatant, that person is stripped of his right to equal protection under the law. He can be tried by a military court that admits evidence obtained by coercion and hearsay at the judge’s discretion and then sentenced to life in prison by a two-thirds majority.

The circular nature of the judge’s logic is disturbing. It begins with the premise that Congress can create a class of people that are outside the protection of the equal protection clause. This can be done for “bad” people, such as alien unlawful enemy combatants. Once this is done, all that is needed is a reasonable process to determine that people are in that class of “bad” people, and then the equal protection clause no longer applies, unless of course it was necessary to prevent an injustice. But Judge Allred has concluded that the military commissions are all the justice that unlawful alien enemy combatants deserve.

It would appear that Mr. Hamdan’s real trial occurred when Judge Allred determined that he was an unlawful enemy combatant.