“Black Clouds” of Coercion over Guantánamo

Sahr MuhammedAlly – 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, July 30, 2008: On July 28, Navy Captain Judge Keith Allred, the military commission judge in Salim Hamdan’s trial, sanctioned the government for failing to share with the defense relevant discovery that provides new details about Hamdan’s more-than-six-years of confinement at Guantánamo. The government handed over 500 pages of documents to the defense just 12 hours before the July 21 start of the trial, despite multiple court orders and requests for discovery dating back to 2007. Because his court order regarding discovery had been ignored, Judge Allred stated that he would presumptively exclude statements extracted from Hamdan’s May 2003 interrogation unless the government could show by clear and convincing evidence that the evidence is reliable and should be admitted in the interest of justice.

The purportedly incriminating statements at issue allegedly were made by Hamdan in May 2003 to Pentagon counterintelligence agent Robert McFadden. Defense lawyers learned from the evidence turned over by the prosecution that Hamdan had been deprived of sleep prior to the interrogation. On July 16, during pre-trial proceedings, Hamdan testified that, while in Guantánamo, he had been subjected to sleep deprivation, felt great anxiety after having comfort items removed for hours or days before an interrogation, and was touched and sexually humiliated by a female interrogator. Notably, at today’s press conference, Deputy Chief Defense Counsel Mike Berrigan stated that a “secret document” written by a female interrogator describes her actions, which support Hamdan’s allegations of sexual humiliation, but the document was given to the defense only in the last week.

The rules of the military commission, unlike the rules of evidence in courts-martial or the federal civilian court system, allow for evidence obtained under coercive conditions to be admitted provided the government can show by a preponderance of evidence that the statements are reliable and should be introduced in the interests of justice. Judge Allred’s July 28 sanction order raised the government’s burden to a clear and convincing standard because of its failure to produce discovery in a timely manner. Judge Allred admonished the government, saying, “You’re on the hot seat because of unsatisfactory performance of discovery.”

Two days later, on July 30, the government attempted to meet this higher burden of proof for admission of the May 2003 statements. The government tendered two witnesses, both currently assigned to Joint Task Force Guantánamo, to testify – on the basis of Hamdan’s 2003 detention logs – that Hamdan was not subjected to coercive techniques prior to his interrogation. To this observer, they failed. On cross-examination we learned that the two government witnesses were not in Guantánamo in 2003, never even spoke to the guards who moved Hamdan five years ago from cell to cell or to the intelligence officers who interrogated him in 2003, and thus could not credibly state what happened to Hamdan in May 2003. Instead we learned, in response to a question posed by Judge Allred, that intelligence officers at Guantánamo can change a detainee’s living conditions for the worse independent of any disciplinary reasons.

Hamdan’s statements made at Bagram Air Field in Afghanistan already had been found inadmissible by Judge Allred because the coercive nature under which they were made rendered them unreliable. In Guantánamo, Hamdan was interrogated more than 40 times, but McFadden is the only agent who says Hamdan admitted to having sworn loyalty to Osama bin Laden. Hamdan denies making this statement. McFadden’s testimony would, to any observer, be all the more necessary for the prosecution’s case. It thus seems remarkable that the government would even risk this testimony being excluded by not complying with discovery orders.

Why would the government take such a risk? To shield abusive conduct.

The May 2008 Justice Department Inspector General’s report on coercive interrogation techniques used on Guantánamo detainees described sleep deprivation as the most frequent technique used on detainees to induce cooperation. In November 2002, the Pentagon's General Counsel approved (among other techniques) sleep deprivation, removal of clothing and stress positions for use on Guantánamo prisoners. And in April 2003 – the month before Hamdan’s disputed interrogation – Secretary of Defense Donald Rumsfeld approved “sleep adjustment” as an interrogation technique to be used in Guantánamo. Human Rights First has previously reported on these and other abusive interrogation techniques in our August 2007 report (with Physicians for Human Rights), Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, and our April 2008 report, Tortured Justice: Using Coerced Evidence to Prosecute Terrorist Suspects.

In the prosecution’s closing argument in favor of admitting Hamdan’s May 2003 statements, it argued that Judge Allred has the power, by allowing Agent McFadden to testify, to clear the “black clouds” of torture and other cruel abuses authorized at the highest levels of the U.S. government that hang over the military commission system at Guantánamo. This task is far beyond the power of Judge Allred. Allowing McFadden’s testimony in these circumstances, however, would only darken those clouds.

When did the Conflict with al Qaeda Start? Two Visions at Guantánamo

Sahr MuhammedAlly – 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, July 28, 2008: One of the contentious issues in the so-called “war on terror” is when did the “war” against al Qaeda start and when does it end? Measuring the start of this “war” bears directly on the government’s efforts in the Guantánamo military commission proceedings to prosecute detainees for various acts the government claims were not simply crimes but in fact were acts in violation of the laws of war. And measuring its end bears on the government’s claim to be able to hold these Guantánamo detainees, even without charge or trial, until the conflict with al Qaeda – and possibly other groups as well – is over.

In the case of Salim Hamdan – whose trial at Guantánamo is now in its second week – the government has alleged that Hamdan was part of the conspiracy with Osama bin Laden to engage in hostilities against the United States beginning in 1996. Hamdan is charged with conspiracy and providing material support for terrorism. He admits to having been one of bin Laden’s drivers.

The second week of Hamdan’s trial began with two experts offering very different opinions of “war,” in order to assess when the conflict with al Qaeda began. The government’s counterterrorism expert opined about his view of al Qaeda’s version of war, based on Osama bin Laden’s fatwas and a collage of al Qaeda propaganda videos compiled in a movie for the prosecution at a cost of $20,000. The defense witness gave a legal analysis on armed conflict under the Geneva Conventions.

“The al Qaeda Plan”

On Monday, the prosecution debuted “The al Qaeda Plan” – a made-to-order compilation of al Qaeda propaganda videos found on the Internet and narrated by the government’s counterterrorism expert, Evan Kohlmann. The movie was made, among other reasons, in order to prove the government’s theory of when the armed conflict with al Qaeda began.

Kohlmann studied Arab-Afghan fighters and al Qaeda in college, went on to get a law degree – but admits he is no expert on the laws of war – and has a counterterrorism blog. He speaks basic Arabic but has never been to Afghanistan or Pakistan.

The seven-part, ninety-minute video, which the government apparently plans to use in many Guantánamo prosecutions, narrates the story of the Afghan jihad against the Soviets (although it excludes any reference to U.S. support of the jihad against the Soviets), bin Laden’s activities in Afghanistan and Sudan, the USS Cole bombing, the Kenya Embassy bombings, and the September 11 attacks.

On cross-examination, Kohlmann testified that the Office of Military Commission (OMC) commissioned the video and changed the proposed name of the film from the “Rise of al Qaeda” to “The al Qaeda Plan,” in order to draw a closer comparison to “The Nazi Plan,” a famous documentary movie produced sixty years ago by the U.S.-led prosecution for the post-World War II Nuremberg trials. “The Nazi Plan” was based on German footage that showed the defendants charged in those prosecutions meeting with Hitler. Hitler’s driver, incidentally, was not prosecuted at Nuremburg, but was a witness at the Nuremberg trials.

The defense objected to having the video shown because it did not show or involve Hamdan, it did not show or even suggest that Hamdan was involved in or had any knowledge of the attacks depicted, and because its images of the destruction of the Twin Towers would unduly prejudice the military commission’s panel of military officers who will determine Hamdan’s fate. Every government witness to take the stand in this trial has testified that there is no evidence that Hamdan had any role in the planning or execution of any terrorist attack, including 9/11. Navy Captain Judge Keith Allred nevertheless overruled defense objections to the movie. He did, however, agree that the movie’s vivid images of the World Trade Center attacks would be “more prejudicial than probative,” and initially ruled that it should not be shown to the panel. Two hours later, however, Judge Allred reversed his position, noting that the prosecution had already shown images of charred bodies in Kenya, and allowed the images of the 9/11 attacks to be shown.

When Does “War” Actually Start?

Hostile acts, including terrorist attacks that take place in a non-international armed conflict (i.e., a conflict not involving two or more nations), do not automatically trigger application of the laws of war. Defense expert Geoffrey Corn, a retired Army judge advocate, former Pentagon law of war expert and now a law professor, testified that, under the laws of war, one of the critical factors that determine whether an armed conflict has begun is the response by a government to a particular attack. Corn testified that mere deployment of military forces overseas is not an indicator of armed conflict invoking the laws of war, which allow one to use deadly force upon sight of the enemy but within parameters specified in the Geneva Conventions. Instead, Corn testified, one needs to look at the responding government’s rules of engagement (ROEs) governing its military’s conduct in the field to determine whether that government is acting as if the laws of war are applicable and whether it is at “war.”

Corn testified that the scope, duration and intensity of hostilities also are factors in determining whether an armed conflict exists for law of war purposes. But because even a “law enforcement” response has its own scope, duration and intensity of hostilities, the key factor in the analysis is the government’s response.

Corn testified that the United States’ reaction in September-October 2001 to the 9/11 attacks triggered the application of a law of war framework, and the United States thus was in armed conflict at that point with the Taliban and al Qaeda in Afghanistan. Corn, however, testified that the United States’ reaction to the 2000 USS Cole attack was a law enforcement response, largely centered on a Justice Department investigation and prosecution of persons responsible for the attack. In contrast, the United States did respond militarily to the 1998 Kenya embassy bombings by attacking al Qaeda training camps in Afghanistan with missiles. But Corn testified that this military response did not result in an indefinite state of armed conflict, and that the United States was in armed conflict in 1998 only for the limited purposes of those missile attacks.

The Office of Military Commissions: Placing Another Thumb on the Scales

A primary responsibility of the OMC – and Judge Susan Crawford, its “Appointing Authority” – is to ensure the proceedings in Guantánamo are conducted lawfully and fairly. They act, though, all too often as if their responsibility is to help the prosecution win convictions. Kohlmann’s movie and his testimony before the commission was paid for by the government, upon approval of Judge Crawford. And Professor Corn’s testimony for the defense? It was provided pro bono, after Judge Crawford disapproved any government funding for it as “irrelevant.”

When Kohlmann’s movie was shown, the viewing gallery, comprised of my NGO colleagues and members of the press, was stunned. We saw repeated images of the passenger jets crashing into the Twin Towers, and people screaming. The footage was powerful. Defense lawyer Charlie Swift had argued that the footage would “terrorize the jury.” It probably did; it certainly did us. And it proved – it attempted to prove – nothing about Salim Hamdan.

Military Commission Trial Shows Its True Colors

Aaron Zisser is the Kroll Family Human Rights Fellow at Human Rights First and is in Guantánamo to monitor the proceedings in the terrorism case against Salim Hamdan.

Guantánamo Bay, July 23, 2008: It is not yet clear why Salim Hamdan got up from the table during his trial today, instructed his defense counsel not to speak for him in his absence, apologized before leaving, and ultimately left the proceedings, only to return some minutes later and apologize again. It should become clearer when he speaks to the jury tomorrow. He asked today if he could apologize to them and explain.

But one thing is clear: something about the proceedings is frustrating Mr. Hamdan a great deal. This is not the first time he has expressed such frustration. He has threatened to boycott and walked out before. It may be that he is stressed by competing pressures to retain his counsel and proceed, represent himself, or boycott altogether, as other detainees are urging him to do.

Coercion in “The Capture Video”

It is also difficult to imagine that it was a mere coincidence that he left during the viewing of an interrogation video that was taped very soon after his capture in November 2001. Mr. Hamdan is, probably to his humiliation, seen seated on a dirt floor, hooded, and then questioned for approximately 45 minutes. Mr. Hamdan returned during the viewing of a second such video shown immediately after the first. In the second video, he is hooded at the beginning, then the hood is removed, and it is replaced after some period of questioning. During the second hooding, a soldier wraps his arm around Mr. Hamdan’s neck in a chokehold-ready position, with Mr. Hamdan still seated on the floor. He is released, unhooded, and questioned again.

The defense had sought to exclude these videos on the ground that the statements were made under coercion. Mr. Hamdan does indeed make some incriminating statements, though the prosecution’s reasons for showing the entire video are not clear. There is a reason the ordinary criminal justice system excludes coerced statements, regardless of whether they might be deemed reliable. While coerced statements are inherently tinged with some level of unreliability, the larger reason to exclude these statements is that coercion does not belong in a civilized justice system. The defense is not arguing that battlefield conditions warrant the same protections as other contexts. They did not seek exclusion of the statements based on a failure to provide counsel or warn Mr. Hamdan of a right against self-incrimination following his capture.

As chief defense counsel Colonel Steven David said today after the proceedings, “Why are we here in Cuba in 2008?” We are a civilized country with a working judicial system that knows how to deal with terrorism prosecutions (see HRF’s report on prosecuting terrorists in federal courts). “We can do better than this,” said Colonel Davis. Indeed, we have done better than this, hundreds of times, in the time-tested system of our federal courts.

The videos by no means portray the worst that happened to Mr. Hamdan (or other suspected terrorists in U.S. captivity). Worse happened to him after his transfer from the site of his capture to other locations in Afghanistan. Statements made during some subsequent interrogations have been excluded. But the treatment need not qualify as torture to be coercive.

The Bigger Picture: A Bad Paint Job

This points to a larger issue that Colonel David has emphasized and that has been clear to me since my first day here. The judge’s black robe and the wood paneling in the courtroom are a superficial gloss giving an appearance of justice and fairness. But once you peel away the gloss and expose what lies underneath, its true colors appear. Beyond the black robe and other physical items in the courtroom that give a semblance of normality, there are other, more subtle deceptions.

For example, a sympathetic and capable FBI investigator who continued his testimony today apparently treated Mr. Hamdan with respect during interviews at Guantánamo and clashed with prison guards who made his job more difficult by compromising his rapport with Mr. Hamdan. The witness smiled broadly at Mr. Hamdan in the courtroom. But all of the statements he elicited from Mr. Hamdan came during interrogations not preceded by any Miranda-type warnings and absent any access to a lawyer.

More peeling: The judge has made rulings excluding some coerced statements, but he has allowed other coerced evidence in. The judge has entertained some hearsay objections, but he has also considered hearsay under an alternative, more lenient standard. The prosecution has disclosed thousands of pages of documents, but those documents have been heavily guarded by the government and disclosed in an untimely manner. Colonel David mentioned today that the defense has asked for additional legal assistance in Washington to help review the discovery.

The paint keeps cracking, and the Administration seems to think people won’t notice.

“Why Are You Doing this?”

Aaron Zisser is the Kroll Family Human Rights Fellow at Human Rights First and is in Guantánamo to monitor the proceedings in the terrorism case against Salim Hamdan.

Guantánamo Bay, July 22, 2008: Today saw opening statements and the first day of witness testimony in the U.S. government’s case against Salim Hamdan. Hamdan’s right to a fair trial was violated in myriad ways, as it has been throughout these proceedings.

Two of Hamdan’s interrogators testified. Extensive hearsay testimony and coerced testimony came into evidence, and an FBI interrogator admitted that, pursuant to official policy, Guantánamo was the only place in the world where he has ever neglected to instruct a suspect of his Miranda rights. He has investigated terrorist attacks all over the world, including the attack in 2000 on the USS Cole. All of Hamdan’s statements were made absent any legal representation.

Meanwhile, the defense is still wading through hundreds of pages of new documents, trying to conduct both discovery and trial at once. Defense counsel opened the proceedings today with a litany of investigative tasks they would have completed had they been given time to review and follow up on these documents.

The military commission system, established ad hoc and long after Hamdan’s capture, simply cannot match the vetted and tested process available in the federal courts, which are equipped to address national security concerns without compromising fundamental rights. (See the New York Times article quoting me about Monday’s proceedings.) At a press conference following today’s proceedings, the chief defense counsel, Colonel Steven David, who has served as a trial judge in Indiana for 14 years, summed it up well: The civilian court system is “the most respected in the world,” said David. “In a time of fear, do we abandon the rule of law, or not?”

Coerced Statements Admitted Into Evidence

Testimony was preceded by the judge’s ruling on Sunday regarding several defense motions to preclude statements made by Hamdan under coercive conditions, or during interrogations unaccompanied by Miranda or Miranda-like instructions.

Because the conditions under which Hamdan was held in late 2001 in Bagram and Panshir, Afghanistan were “highly coercive,” the judge granted the motion to exclude statements made in those places.

However, most of the statements Hamdan made in Guantánamo were ruled admissible. Hamdan was interrogated in Guantánamo without access to counsel or notification of his right not to incriminate himself. In addition, the FBI agent who testified noted that he had to press guards to permit Hamdan a single phone call to his wife, who was pregnant at the time of Hamdan’s capture. Claims that investigations by law enforcement officers constituted an “intelligence operation” rather than a criminal law enforcement operation rang hollow and are, as the deputy chief defense counsel said later today, “a Johnny-come-lately answer.” Colonel David said that the lack of counsel “permeates the entire process and taints the entire process.”

The statements made and videotaped in Kandahar immediately after Hamdan’s capture were also ruled admissible. Snippets of those videos were shown during the trial today and the conditions clearly appeared coercive. In the videos, Hamdan is on a dirt floor with a sack on his head, and there are men with guns and masks standing around. One of Hamdan’s statements from the video—that he knew there were missiles in the vehicle that was stopped at the checkpoint where he was captured—was disclosed today.

Snoopy Would Have Rolled His Eyes

Regarding the untimely discovery just released to the defense, the prosecution argued that the defense had suffered no prejudice from the delay. The judge responded: “The government is in a poor position to get indignant about anything. . . . ‘Good grief,’ Charlie Brown might say, ‘what have you been doing?’” The disclosure came after months of effort by the defense to obtain the documents. The judge is withholding a ruling with respect to some statements Hamdan made during interrogations at Guantánamo pending defense counsel’s review of the documents. But, given the judge’s ruling over the weekend, it is hard to imagine that anything in those documents would rise to the level justifying exclusion.

Meanwhile, as Colonel David put it, the defense team has “really tough choices” to make—examining documents that may be important at the expense of giving their full attention to the trial, or giving their full attention to the trial at the expense of examining potentially important documents. The chief prosecutor noted that some of the delays are due to concerns about disclosing national security secrets. He said that he prefers to call the rule “the openness rule” rather than the “secrecy rule,” stating that some of these disclosures are being made without a requirement to make them, and that the government is working to perfect the disclosure process to avoid further delays.

So the first day of testimony confirmed the concern long held by Human Rights First that the military commission process is fundamentally flawed. I cannot put it any better than Colonel David, who said that wherever he goes in the world, people remark on our civilian court system and established court-martial system and say: “Everyone respects you. Why are you doing this?”

Is That What You’re Wearing to Trial?

Aaron Zisser is the Kroll Family Human Rights Fellow at Human Rights First and is in Guantánamo to monitor the proceedings in the terrorism case against Salim Hamdan.

Guantánamo Bay, July 21, 2008: Awkwardness and threats of further delay seized the start of today’s proceedings. Slated as the last day before opening statements, the morning began with the entry of Salim Hamdan’s not-guilty plea. Mishaps continued through the end of today’s hearings and into the evening. The numerous problems, both serious and ostensibly trivial – including awkward moments, last-minute rulings on significant evidentiary issues, and eleventh-hour document disclosures by the government – are the latest examples of the disarray that has plagued the military commissions since 2004. These hurdles highlight the danger of departing from reliable systems and procedures already in place to handle complex terrorism cases.

The day was mostly taken up with jury selection – in this case, selection of the “commission members” who will judge Mr. Hamdan’s guilt or innocence on charges ranging from driving Osama bin Laden to transporting missiles to the battlefield. The numerous personal and professional connections between the commission members (who are all military officers) and people who were in the Pentagon when it was attacked on September 11 – and the impaneling of some of these members – demonstrate the need for more mainstream mechanisms for prosecuting alleged terrorists.

Wardrobe Malfunctions and Government Fumbles

Today’s numerous mishaps show how even the simplest issues can cause problems in a process that is made up on the fly.

Perhaps especially symbolic was the fact that Mr. Hamdan was forced to wear his prison garb, instead of his formal attire, in his first appearance before the military commission members. While this may seem a trivial matter, in ordinary courts, the appearance of a defendant in his prison garb is considered to prejudice the defendant in the minds of the jury members. For it to happen the very first day is particularly disconcerting.

The judge was compelled to explain the situation to the then-potential commission members, noting that Mr. Hamdan’s appearance was not a form of protest and referring to his clothes as his “casual” attire. Apparently, someone in the detention facility had thrown Mr. Hamdan’s formal courtroom clothes in the laundry. The judge might have recessed to wait for the clothes, but the defense seemed to think it would take some time for the clothes to arrive. The clothes were retrieved a couple hours later.

Later in the morning, the prosecution fumbled around to find a document that it was supposed to read in open court. Shortly after the prosecution began reading the incorrect document, which was a detailed charge sheet that would have taken a lot of time, the judge was compelled to ask the potential commission members if they had a copy of the correct document on hand. One of the potential members provided his copy, and the prosecution read from that.

Perhaps the most embarrassing moment for the prosecution was when it was asked to swear in the potential commission members. The military prosecutor stepped up to the podium and apparently improvised a statement. The judge waited until “I do” and then said that he may have “caught trial counsel by surprise.” He then read the correct swearing-in statement.

The proceedings closed when the judge realized he could not complete the jury instructions because he could not be sure whether the military commission mirrored the court-martial system’s rules allowing commission members (jurors) to ask questions of the witnesses.

A Jury of One’s Peers?

Jury selection was another good example of the deceptive nature of the proceedings. Jury selection proceeded in a manner that resembles jury selection in any case, with discussion about bias and the like. But important and troubling differences quickly emerged.

The jurors are all officers from the various branches of the military, and they all appeared in uniform. This might make sense in a court martial, since misconduct by military persons occurs in a context and environment familiar to those who have experienced it. This seems to parallel the civilian justice system, which requires a jury of one’s peers. But this is simply not the case here.

Some other problems with this system became particularly acute as the attorneys questioned individual jurors. Of the thirteen potential members in the pool – yes, only thirteen were available – at least five knew people in the Pentagon when it was attacked on September 11. Others knew the officer serving as Commanding Officer of the USS Cole when it was attacked in 2000.

It is no surprise that so many military officers knew people in the Pentagon on September 11, or that some knew the Commanding Officer on the USS Cole. But this obvious fact highlights the problem of having military officers judge a person accused of conspiring with the Al-Qaeda masterminds of September 11.

One of those five was in the Pentagon on September 11, near the site of the impact, and had been classmates with the Commanding Officer of the USS Cole. While the judge excused this panel member and another member who had friends who participated in removing bodies from the Pentagon following the attack, he nonetheless denied a defense motion to remove a third panel member who knew the USS Cole Commanding Officer from college and knew a person who was killed at the Pentagon. The defense had to use a peremptory challenge to remove that person from the jury box. The judge reasoned that the member had not known the victim well, and it had been a long time since they had had significant contact. In civilian courts, it is the norm to excuse potential jurors who know victims or intended victims of the crimes.

After excusing other members, including one who happened to know an FBI witness in the case, the judge impaneled six members plus one alternate. A minimum of five members is required under the Military Commissions Act, and only two-thirds are required to vote guilty in order to convict Mr. Hamdan.

Late-Night Reading: Untimely Disclosures and HVDs

Several outstanding issues remain unaddressed the evening prior to opening statements. Here are two:

• Coercion and self-incrimination: The judge issued several rulings today suppressing some of Mr. Hamdan’s prior statements, including statements allegedly made during his detention in Bagram, Afghanistan. The judge did not issue some of his rulings until this evening, however, and it is possible that the trial will be further delayed should the government wish to appeal. The defense called these rulings “highly significant,” both for Mr. Hamdan’s case and as precedent for similar cases.
  
• Conditions of confinement: Yesterday, the government turned over more than 550 pages of documents that were requested months ago. Fifty or so pages relate to Operation Sandman, a sleep deprivation program, and were not released until late last night. The remaining documents pertain to other aspects of Mr. Hamdan’s confinement.
  
  The defense has argued that these documents could shed light on conditions and treatment during Mr. Hamdan’s interrogations and could be used to argue against the admissibility of certain statements made under coercion. The last-minute nature of the disclosure could prompt defense counsel to ask for a delay so they can better prepare their opening statements. After the proceedings today, the defense called this delay “Governmental misconduct” with a “big-G” and an indication of how the Administration has handled this process to ensure “plausible deniability” regarding its own role in withholding evidence.

The prosecution has used national security concerns as a crutch in fighting defense motions for discovery. Ordinary federal courts have vast experience dealing with terrorism prosecutions, including over one hundred such cases in the last fifteen years, and are equipped to address both national security concerns and the fundamental rights of the accused. Using such courts would assure more predictable and timely processes and would provide more fairness and legitimacy.

Fig Newtons and Fundamental Rights?

Aaron Zisser is the Kroll Family Human Rights Fellow at Human Rights First and is in Guantánamo to monitor the proceedings in the terrorism case against Salim Hamdan.

Guantánamo Bay, Friday, July 18, 2008. Salim Hamdan’s defense counsel noted today that while Hamdan was offered Fig Newtons after thirty months of confinement, he still has not been granted the fundamental rights afforded to defendants in federal court. As has been common in these proceedings, the judge must make up rules as the proceedings go along, even three days before the first military commission trial in more than sixty years is set to begin.

The Central Constitutional Question: Which Rights?

The key issue for military commission Judge Keith Allred to decide over the weekend is whether Hamdan, who is accused of being Osama bin Laden’s driver (among other things), is entitled not just to Fig Newtons, but the rights provided for in the Fifth Amendment and other core constitutional provisions.

This is a bizarre question for me to even consider. No lawyer ever uttered the words “Fig Newton” — let alone in the same breath as “fundamental rights” — before the federal district court judge that I worked for after law school. Judge Allred’s black robe and the wood paneling in the military commission courtroom are familiar to me, but many of the issues were surreal. Two-hundred years after the Constitution was ratified, these questions of whether to recognize fundamental rights should not be a question in an American court. In addition, the struggle to resolve these issues and set the ground rules for Monday seems wholly unnecessary: ordinary federal courts are a reliable and legitimate alternative to military tribunals. They have amassed years of experience trying terrorism cases and use time-tested rules and procedures to resolve complex legal issues.

Judge Allred recognized that terrorism cases are often prosecuted in federal courts, so why not here? The prosecution’s response — that it is the Administration’s prerogative — is specious at best.

The recent Supreme Court decision in United States v. Boumediene held that Guantánamo detainees have the right to habeas corpus, that is, the right to challenge the legality of their detention in federal court. The Court did not address the Fig Newton dilemma, however — it did not decide whether other constitutional rights extend to detainees held in Guantánamo. So Judge Allred asked counsel to provide him with cases that point to the extraterritorial application of the Constitution. Are both Fig Newtons and fundamental rights available at Guantánamo?

Prosecution: Applying the Fifth Amendment to Hamdan “Endangers All of Us"

The question of what rights apply is the threshold question. If Judge Allred determines that some constitutional rights do apply, he must decide which ones. Does the prohibition against the use of coerced statements apply? Does Hamdan have the right not to incriminate himself? In other words, does Miranda – or some form of Miranda – apply? As Hamdan’s defense counsel noted, the Constitution protects fundamental rights, “none more important than those in the Bill of Rights, including the Fifth Amendment,” and does not end at the border of the continental United States. “It extends here, and it extends now.” The prosecution said that this proposition “endangers all of us” and is “absurd” and “dangerous.”

And what happens if Judge Allred holds that the Constitution does not apply and the trial proceeds? If Hamdan is convicted, he will appeal, and this whole process could be called into question after its conclusion.

Battlefield GTMO?

Even under the Military Commissions Act, the judge must determine whether statements were coerced or resulted from an unlawful failure to warn Hamdan of any right against self-incrimination. (The prosecution claims that Hamdan’s willingness to talk after he was permitted to call his wife, and his comment to an interrogator that one of his questions was “stupid,” show that he was not “a limp noodle” willing to give up anything.)

The prosecution contends that every interrogation was part of an intelligence mission and therefore not unlike interrogations occurring on the battlefield. Such statements, given the exigent circumstances in which they’re made, should not, the prosecution argues, be excluded so long as they did not result from torture and are otherwise reliable.

But even Judge Allred seemed to doubt that interrogations eight thousand miles from Afghanistan and years after Hamdan’s capture fall into the same category as ordinary battlefield interrogations. Yes, interrogators may elicit some useful intelligence, but what, the judge asked, was the primary purpose of the interrogations — intelligence gathering or evidence gathering for a criminal prosecution?

On the battlefield, there may be a gray area between an intelligence-focused mission and a criminal investigation. But once at Guantánamo, there is “a more contemplative environment,” as Hamdan’s defense counsel noted. Should the government get two bites at the apple, or should it have to prioritize, for instance, by using (lawful) interrogation tactics that are more likely to elicit intelligence but may compromise the statements’ admissibility?

Discovery Delays: Conniption Fits and Top Secret Clearance for Terrorism Suspects

Of course, even assuming Judge Allred can get to these issues on time, he may continue the trial further if some discovery issues remain unresolved, and he bluntly blamed the prosecution for the prospect of such further delay: “We’ve come to the point where the government needs to move. . . . If security concerns are overriding, I’ll continue [the trial]. . . . I’m only pushing you because you’re pushing me. You want the trial to start Monday – so get on it.”

These discovery issues should have been resolved weeks or months ago. Instead, the prosecution has (1) failed to produce discovery related to Hamdan’s treatment and identifying who interrogated Hamdan during a one-month period, (2) produced 600 pages of documents less than one week before trial is set to begin, including documents pointing to possible coercive tactics used on Hamdan, specifically “Operation Sandman,” which entails sleep deprivation, (3) produced further (secret) documents only this morning that supposedly explain why Operation Sandman did not result in coerced statements in Hamdan’s case and why Operation Sandman “does not impact the case whatsoever,” and (4) prevented even Hamdan’s military lawyer, who has the necessary special Top Secret security clearance, from questioning “high-value detainees,” including Khalid Sheikh Mohammed, who might be able to provide key exculpatory evidence in Hamdan’s case.

Judge Allred finally ordered the government to turn over documents pertaining to the missing month of Hamdan’s detention and to permit Hamdan’s military lawyer to visit the high-value detainees this weekend to assess whether they might testify. He said that allowing pretrial access is the fair thing to do, unless it will cause the government to have a “conniption fit.” But this shouldn’t be a problem, as Hamdan’s military lawyer is “cleared, read-in, and vetted.”

It is difficult to see how the defense can be ready to proceed on Monday with so little time to examine the documents the government has been ordered to produce and whether the high-value detainees are willing to testify. (In one of the more bizarre moments today, Hamdan apparently joked that he has the necessary clearance, to which Judge Allred laughingly responded, “We’ll check with security.”) Defense counsel noted today that it will be difficult to make a comprehensive and coherent opening statement if they do not know what evidence they will be permitted to present: “We just need discovery if we are going to trial.”

With two hundred years of precedent to work from, Judge Allred may not have been forced to wait until the eleventh hour to rule on key constitutional questions if Hamdan were being prosecuted in federal district court.

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.

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 17^th, 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.

“Doctors or Butchers, How Would I Know”

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 15, 2008: I’m sitting in my overly air conditioned, six person Army tent at Camp Justice, Guantánamo Bay, Cuba at 12:30 am thinking about what I could write that would make you angry. That’s right, angry, not at me, but at what our government has done here.

It was a long day in the courtroom at Guantánamo. For 8 hours, the military judge presiding over Salim Hamdan’s case heard testimony from Mr. Hamdan himself and from a forensic psychiatrist expert witness, Dr. Emily Keram, testifying for the defense. There were no rulings. The testimony will continue in a few hours.

The defense is presenting these witnesses in support of a motion to suppress (exclude from use during the trial) statements Mr. Hamdan made as a result of coercive interrogation. Under the Military Commissions Act, statements derived from coercive interrogation may be admitted as evidence by the judge at his discretion. The U.S. Constitution prohibits the introduction of coerced evidence during criminal trials in the United States.

The defense is also trying to show that the government has ignored a federal court order to place Mr. Hamdan in the general prison population rather than in isolation. At Guantánamo, that would be in the most humane of the detention camps, Camp 4. Camp 4 bears some resemblance to a “normal” prison in the United States. The defense is requesting that Mr. Hamdan be moved from isolation to Camp 4 immediately, both to comply with the court order and for the sake of Mr. Hamdan’s mental and physical health. The government has designated all camps at Guantánamo as “general population” camps, creating its own unique definition of the phrase.

I have an insurmountable problem in writing this post. I’m simply not a talented enough writer to convey the essence of what I heard today in a few paragraphs. I’m not sure that anyone could accomplish this task. It’s frustrating. I know that if I could do so, the readers’ outrage at what our government has done in the name of national security would equal my own. Let me at least provide some glimpses into the world Mr. Hamdan has lived in for the past six years, according to his and Dr. Kemal’s testimony.

“I was sick for a week and no one did anything, but as soon as I told the interrogator the doctor came.”

Mr. Hamdan suffers from sciatica, a painful back condition. He testified that, after repeated requests for help over a week, nothing was done. He was then taken to an interrogation session, and the interrogator had a doctor and corpsmen treating him in five minutes, in the interrogation room. He quickly learned that the path to medical care lay through cooperation with his interrogators. It is a violation of the laws of war to make medical treatment conditional on cooperation.

“I felt like I started to live again.”

This is how Mr. Hamdan described the feeling of leaving isolation and being transferred to Camp 4. Mr. Hamdan has been in isolation of some sort for virtually the entire time he has been at Guantánamo. For approximately 30 days, he lived in Camp 4 where he shared a dormitory style room with 9 other detainees, had access to outdoor exercise and could pray with other detainees. Despite a federal court order directing that Mr. Hamdan be placed in the general prison population, the government has kept him in isolation. Mr. Hamdan suffers from anxiety and post-traumatic stress disorder, and his physical and mental condition has deteriorated continuously since he was removed from Camp 4.

“No recreation time per Intel”

The above is an entry Dr. Kemal discovered in Mr. Hamdan’s medical records for February 2004. Mr. Hamdan had seen the medical officer because of the pain of his sciatica. The entry indicates that “Intel” had directed that Mr. Hamdan be denied exercise. Exercise is a universally prescribed treatment for sciatica.

“Doctors or Butchers, How Would I Know”

Mr. Hamdan went on a hunger strike to protest his removal from Camp 4. After that, he was force fed. The first feeding was done humanely according to standard medical procedures. Subsequently, however, he was restrained and force fed using an oversized nasal tube and no anesthetics or lubricant, an extremely painful process. During this force feeding, Mr. Hamdan was placed in a full body restraint chair where he could not move. He was left there for three or four hours. He was told that, if he needed to relieve himself, he could do so in the chair. The persons who did this did not wear hospital uniforms, and Mr. Hamdan does not know whether they were medical personnel.

“He feels dead inside. He has not been treated like a human being here.”

I can’t compress eight hours of testimony into two pages. I haven’t discussed the sleep deprivation program, the anxiety-producing effect of removing comfort items a few hours or days before each interrogation, or the sexual humiliation a very disturbed Mr. Hamdan described today, but I think you may have gotten the general idea.

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.

“Not quite the thing to do here”

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 13, 2008: The flag of the great State of Mississippi is missing. Yesterday when I arrived in Guántanamo, it was flying on a tall flag pole among the Quonset hut shaped tents I’m staying in here at Camp Justice. Two hours later it was gone. Its valiant sister, the Texas state flag was flying right beside it and is still flying. Now, I did point out to my escort, an Army First Lieutenant that I wasn’t sure what state the flag with the very prominent Confederate States of America’s stars and bars was from, and I asked her if she knew. Neither she (from New Mexico) nor the other soldier with us at the time (from Wisconsin), nor I (from Virginia) knew, but we had a pretty good idea what part of the country it was from, south of the Mason Dixon line.

I have nothing against the State of Mississippi, but the flag started me thinking about symbols and how they become identified with places in a way that evokes very strong emotions. Guántanamo has become a symbol to much of the world, a symbol of the failure of the United States to live up to its historic values, a symbol of the indefinite detention without charge of suspected enemies, a symbol of abusive treatment of prisoners, particularly prisoners who are culturally and ethnically different from their jailors.

Once a strong emotional connection between a symbol and what it represents has been created, that bond is almost impossible to break. Despite the many good Americans who are working here and trying to do their duty, Guántanamo will always be a place of shame for the United States. The more we learn about what has been done in our name at Guántanamo, the more we will all regret that our government ever opened the detention center here. Despite official assertions to the contrary, it has become more and more undeniable that serious abuses have occurred at Guántanamo. Recently it was revealed that the International Committee of the Red Cross had informed the highest levels of the Bush Administration that the treatment of detainees at Guántanamo was categorically torture and punishable under international law as a war crime. That sort of thing makes for a strong and enduring symbol.

The symbol I noticed, the embedded Confederate flag that takes up about half of the Mississippi state flag, is viewed by some as a symbol of a proud heritage and great sacrifice. To others, however, it is something else altogether. I only asked my escort what state it was from. I didn’t say anything else. I don’t think I needed to. The disappearance is a mystery; my escort said she did ask someone else where it was from, but she doesn’t know why it was removed. Perhaps the National Guard unit that was from Mississippi left, or perhaps the power of a symbol used by some to express racist sentiments, and viewed by many as a symbol of those sentiments, wasn’t quite the thing to have flying in a place where Americans have held 250 Muslim men for six years without charge. At any event the flag is gone. The prisoners, however, are still here.

I’m still here too. I’m a former Army officer and former Department of Defense and defense industry executive, now a part time attorney and human rights activist. I have no sympathy for the murderers of 9/11. I lost a colleague in one of those planes. But I also have high expectations for my country and believe that we should live up to the standards we have long set for ourselves and for others.

This is my second trip to Guántanamo as an unpaid consultant for Human Rights First. The first was last April, and my posts from that trip are available on Human Rights First’s web site.

This trip, I am here in the shadow of last month’s U.S. Supreme Court decision, Boumediene v. Bush, the fourth Supreme Court case that has gone against the Bush Administration’s attempts to create a law free zone at Guántanamo. Boumediene established that foreign nationals held at Guántanamo have a constitutional right to habeas corpus. Habeas corpus provides the right to challenge detention in an impartial court, and it forces the government to justify the detention or release the prisoner. Those challenges are now going forward in federal district court, but here in Guántanamo, the military commission trials are continuing.

I am here to see pre-trial hearings for Salim Hamdan, a Yemeni who has been at Guántanamo for over six years. He is accused of having been a driver and bodyguard for Osama bin Laden. Mr. Hamdan has one of the longest and most complex legal histories of any of the Guántanamo detainees. In 2006, in just one of his legal proceedings, Mr. Hamdan’s case went before the U.S. Supreme Court. The result was that the Court overturned the Bush Administration’s first attempt to set up special trials by military commission for some of the prisoners at Guántanamo. Now, two years later, Mr. Hamdan is on trial again under the new Military Commission Act rules. While the Boumediene court answered one question about Mr. Hamdan’s rights, it failed to address many others.

This week we will learn how far this tribunal thinks Mr. Hamdan’s rights extend. And in so doing, we will learn a little more about what kind of symbol Guántanamo will be for our country, and perhaps confirm again that this symbol should also be taken down.