Missing at Guantanamo: Signs of a Fair Trial

This week marked the beginning of the trial of Salim Ahmed Hamdan, the first Guantánamo Bay prisoner to face trial by military commission. These first few days have highlighted the deficiencies in the process afforded these men.

High amongst these is Judge Allred’s decision that the Fifth Amendment right against self-incrimination does not apply to Hamdan and that some statements obtained through coercion may be admitted as evidence. By allowing the prosecution to rely on self-incriminating statements obtained far from the battlefield without Miranda warnings and through coercion, Judge Allred has violated domestic and international fair trial standards. In the federal criminal justice system, a defendant must be warned that statements may be used against him before his interrogation begins, and corroborating evidence is required at trial to support such statements. Contrary to this norm, the LA Times reported today that much of the government’s case against Hamdan is based on self-incriminating statements alone.

The lack of crucial safeguards typically afforded defendants in the criminal justice system is only the latest proof that the military commission process is deeply flawed and that it cannot result in any just outcome.

Coerced Evidence Rejected at Guantanamo Trial; but the Process Is Still a Stain on the American Justice System

As the Los Angeles Times reported (07/22/08):

The military judge overseeing the first war crimes trial against a terrorism suspect at Guantanamo Bay agreed Monday to bar some evidence against Osama bin Laden's former driver because it was obtained in "highly coercive environments and conditions."

On the trial's opening day, Navy Capt. Keith J. Allred denied defense appeals to exclude other statements Salim Ahmed Hamdan made during interrogation by U.S. agents in Afghanistan as well as during his more than six years' imprisonment at Guantanamo Bay, Cuba. The judge said he would withhold judgment on a May 2003 interrogation until the defense had time to review 600 pages of detention records, which the government did not turn over until Sunday -- the night before trial.

Judge Allred's efforts to keep some coerced evidence out of the trials at Guantanamo are notable. But this does not change the fact that the system in place to try terror suspects held by the U.S. retains few of the fundamental protections that are the cornerstone of the American justice system - and which have long been an example to the rest of the world.

In a recent report, Tortured Justice, Human Rights First showed how the introduction of coerced evidence, obtained through the use of official cruelty, into military commission trials at Guantanamo Bay is rapidly contaminating the justice system and jeopardizing the prospects for the successful prosecution of terrorists.

In the report, HRF recommends that in order to stop the pollution of America’s justice system:

• The U.S. government should try terrorist suspects by court-martial or in civilian criminal courts where coerced confessions are inadmissible, the introduction of hearsay evidence is restricted to protect reliability and the rules governing the disclosure and introduction of classified evidence are clear.

• The U.S. government should prohibit the admission of statements extracted through torture or coercion during detention hearings and criminal trials for terrorist suspects.

• Congress should require the U.S. government to provide detainees with counsel at detention hearings, and restore habeas corpus rights to detainees designated as enemy combatants

• Congress should impose additional discovery requirements on government prosecutors in terrorism cases, subject to the same procedures employed in U.S. courts for evaluating potentially classified evidence.