The Sandman and Alfred Hitchcock Come to 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 14, 2008: Today at Guantánamo, Salim Hamdan’s tortuous legal journey continued. Supposedly Mr. Hamdan is one week from starting his trial under the Military Commissions Act of 2006 (MCA). There is a good chance that the trial will be delayed; but there is not much doubt that Mr. Hamdan’s long legal journey will continue far beyond this week. That journey has taken over six years and has included winning a U.S. Supreme Court case overturning the first military tribunals established by the Bush Administration.

Mr. Hamdan is not accused of being one of the 9/11 plotters. He is alleged to have been Osama bin Laden’s driver and bodyguard. He faces two charges, conspiracy and material support. Both charges rest on his association with al Qaeda and some peripheral activities, not on any specific terrorist plot. The government is seeking life in prison.

By creating an untested, and at least partially unconstitutional, body of law at Guantánamo, the U.S. government has opened itself to one legal challenge after another. These challenges have already taken years to play out and, unless the commissions are stopped, they are likely to take several more years to conclude. In the meantime, the detainees continue to rot in their cells without any semblance of due process.

Today was the first of several hearings before Navy Capt. Keith Allred, the military judge presiding over Mr. Hamdan’s case, intended to clear the way for the trial next Monday. Standing between now and then are a number of defense motions challenging the legality of the system. Meanwhile, in federal district court in Washington, D.C., a federal judge will rule by Friday on Mr. Hamdan’s motion to delay these proceedings until his habeas corpus petition—recently authorized by the U.S. Supreme Court in Boumediene v. Bush—is resolved. It will be an important week for Mr. Hamdan, for the reputation of the U.S., and for the legitimacy of the commissions.

Today’s hearing addressed challenges that invoke fundamental American legal principles. They include the right to call witnesses in one’s defense, the prohibition against ex post facto laws, equal protection under the law, and the government’s obligation to provide exculpatory information to the defense. All of these rights are guaranteed by the Constitution, not just to citizens of the U.S., but to any person under U.S. legal jurisdiction. The government has argued that these protections do not extend to Guantánamo. This week we will find out if Judge Allred agrees.

This morning’s hearing began with a heated argument about whether several detainees, including so-called high value detainees, will be permitted to testify in Mr. Hamdan’s defense. Mr. Hamdan asserts that these detainees will clear him of conspiracy charges by showing that he was only bin Laden’s hired chauffeur. The government views any live testimony by these detainees as a “dire threat to national security” because elements of the CIA’s “enhanced” interrogation program might be revealed. “The sky may not fall, but buildings may” said a government prosecutor. The history of this issue is complex, but it comes down to whether a defendant has the right to call specific witnesses when there is good cause to believe they could exonerate him.

The defense lawyers have no intention of questioning the witnesses about their treatment; they want to ask them whether Mr. Hamdan was involved in al Qaeda or any plots against the United States. Some of these same witnesses recently attended their own pre-trial hearings. The government’s security concerns seem excessive, and apparently Judge Allred agrees. He did not rule on the motion, but he instructed the parties to work out a solution. He also emphasized that if no agreement is reached, he will dictate a solution. One is left to speculate why the government is insisting on preventing even a remote chance that information about the CIA’s interrogations will be revealed.

Next the parties addressed questions arising from the Boumediene case. In this case, handed down last month, the Supreme Court held that detainees have a constitutional right to challenge their detention in federal court. The Court did not clarify what other constitutional rights detainees at Guantánamo might have. The potential list is long, but the process of sorting that out started today.

The ex post facto clause prohibits Congress from creating crimes retroactively for acts that were not crimes when the conduct took place. The MCA was passed long after Mr. Hamdan was brought to Guantánamo. The government argued that Mr. Hamdan’s alleged offenses, which are war crimes under the MCA but were not war crimes when he was arrested, were crimes nevertheless, at least “in general.” This is, to say the least, an interesting argument; that conspiracy is generally a crime and that the acts that constitute material support are generally criminal anyway, even if not under the internationally accepted laws of war. In the prosecution’s words, “a rose by any other name would still smell as sweet.” One has to wonder whether any criminal act could be retroactively elevated to the status of a war crime if the legislature so chooses. There is a smell here all right, but hardly a sweet one.

The court then turned to the subject of equal protection. The defense observed that the MCA applies only to aliens. U.S. citizens are not subject to military commission trials. Under the jurisprudence of the equal protection clause, nationality, like race or religion, is a suspect classification subject to strict scrutiny by the court. Any classification by nationality must be made for a specific compelling reason and must be narrowly tailored to achieve the desired end.

The government focused on the unlawful enemy combatant designation as the operative classification. In the government’s view, the executive has the power to declare a person an unlawful enemy combatant. Once this is accomplished, the government only needs a rational basis, a very low standard, to treat the person differently from others outside the group. Does it seem consistent with the liberty we enjoy as Americans that the executive should be able to create a new classification, let us call it “enemies of the state,” and then having made that determination unilaterally, proceed to discriminate against that class by subjecting it to trials exempt from the Constitution? This interpretation completely obliterates the equal protection clause.

Finally, in a fairly dramatic turn of events that will play out tomorrow, the defense announced that, despite multiple court orders beginning in 2007, last week the prosecution suddenly produced hundreds of pages of scrambled records about Mr. Hamdan’s treatment at Guantánamo. Mr. Hamdan’s attorneys assert that the government willfully failed to produce these documents, even denying their existence until the very last moment before trial. The government, however, says that, despite diligent searches, it only recently discovered the documents.

Tomorrow the defense will move for sanctions against the prosecution for its failure to produce the documents. The documents include records stating that for 50 days in 2003, at about the time Mr. Hamdan allegedly made incriminating statements, he underwent the Sandman program, reportedly a prolonged sleep deprivation program. There is also a cryptic record that “Alfred Hitchcock” visited Mr. Hamdan and other detainees at about the same time. Was Mr. Hitchcock a person, or was this a reference to a program designed to terrorize detainees? We do not know, but tomorrow Mr. Hamdan is expected to testify about his treatment in support of the motion for sanctions.

Mr. Hamdan’s journey through something I refuse to call an American justice system goes on.