Report from Guantanamo

Here’s Sahr MuhammedAlly’s report from Guantanamo where she is observing the Hamdan proceedings.

Access to KSM Denied for Hamdan Military Commission Hearing, but Defense Allowed to Call Some Witnesses

Guantánamo Naval Base, Wednesday, December 5, 2007: A hearing began today to determine whether Salim Ahmed Hamdan is an “unlawful enemy combatant.” By the time this hearing finishes this presumably will be the first time a Military Commission will actually determine whether any Guantánamo detainee is in fact an unlawful enemy combatant subject to the Military Commissions Act (MCA).

We heard oral arguments today on the defense’s motion for a Geneva Convention “Article 5” hearing. The defense also moved to compel production of several witnesses for the MCA jurisdictional hearing to determine whether Hamdan is an “unlawful enemy combatant.”

According to the Bush Administration unlawful enemy combatants are fighters who don’t follow the international laws of war. Or people far from any battlefield who somehow support fighters who don’t follow the international laws of war. Or of course, as is alleged of Hamdan, one of their drivers.

Before the hearing began Hamdan – wearing white robes and black and white checked jacket – walked into the military commission courtroom flanked by two military Joint Task Force (JTF) guards and followed by Navy Captain Keith Allred, the Military Commission judge for these proceedings. In all there were about 40 people in the courtroom, including guards, Colonel David Morris, Chief Prosecutor of the Military Commissions, 5 NGO observers, U.N. Special Rapporteur for Counterterrorism and Human Rights Martin Schenin, and media representatives. The hearing was delayed several times by apparent audio equipment problems that ultimately prevented observers from hearing the Arabic translation, the accuracy of which has been a problem in the past.

Article 5 Hearing Motion

Navy Lieutenant Brian Mizer, Hamdan’s defense counsel, argued that Hamdan is entitled under the Geneva Convention Relative to the Treatment of Prisoners of War (PoWs) to an Article 5 hearing. Hamdan was captured in November 2001 on the Afghanistan “battlefield” at a time when the Geneva Conventions were clearly applicable to the conflict between the United States and Afghanistan. The defense argued that Hamdan is entitled to treatment as a PoW rather than being subject to the MCA at all.

I’ll discuss this in at greater length in another blog – Allred deferred ruling on the motion – but will now turn to the request for “high value” detainee (this term even has its own acronym down here – HVD) and other witnesses.

Defense Motion for Production of Witnesses

Thus began a fascinating exchange between the prosecution and defense on the defense request for production of witnesses for the MCA jurisdictional hearing. On November 15, the defense submitted to the prosecution a list of 9 witnesses they wished to call for purposes of presenting evidence on jurisdiction issues. (Defense counsel had been ordered to produce a witness list by November 28.) The witnesses requested were:

Professor Brian Williams

Five Guantánamo detainees: Khalid Sheikh Mohammed (KSM); Ramzi bin al-Shib; Abu Faraj al-Libi; Abdul Rahim al-Sharqawi (a Yemini or Saudi national known as “Riyadh the facilitator” and thought to have been rendered to Jordon until flown to Guantanamo in September 2004; and Said Boujaadia (a Moroccan detainee I’ll say a bit more about below)

Two of Hamdan’s brothers-in-law: Nasser al-Bahri (whom the defense requested for purposes of testifying about Hamdan during the period of 1995-1999); and Muhammed Ali Qassim al-Qala’a

Hamdan’s wife, Umat Al-Subur Ali Qassim al-Qala’a

The prosecution, upon receipt last month of the defense request for these witnesses, denied the defense’s request in its entirety without explanation. The defense thus on December 4 filed a motion with the Military Commission to compel production of witnesses.

At today’s hearing the prosecution agreed to allow Professor Williams to testify but raised objections to all the other witnesses. Assistant U.S. Attorney John Murphy argued that the defense’s reasons for wanting the witnesses were “speculative” and therefore the witnesses were not “relevant and necessary” under Rule 703 of the Rules of Military Commission (RMC). As for Hamdan’s wife, al-Bahri, and al-Sharqawi (a Guantánamo detainee) the prosecution suggested the defense consider submitting “stipulated statements” instead of requiring production of the witnesses in court “because we want to provide the court with helpful information . . . we have an obligation to provide exculpatory and inculpatory information.”

High-Value Detainees

The prosecution also argued that producing the Guantánamo detainee witnesses will “virtually open up access to every detainee here and everywhere else.” Three of the detainees – KSM, al-Libi, and al-Shib – are HVDs, and Murphy argued that there is very limited access to them, including by other government entities. Army Lieutenant Colonel William Britt added that none of the lawyers have been “read into” the “special access program” and that even he as the Military Commission’s Deputy Chief Prosecutor does not have access to the HVDs.

As Professor Charles Swift of Emory Law School – who as Navy Lieutenant Commander Swift successfully represented Hamdan before the Supreme Court in the case that resulted in the Court’s 2006 decision striking down the previous military commission regime – began arguing for defense access to the HVDs, the prosecution objected to his statement based on “national security privilege.” Judge Allred initially ordered counsel to hold off discussing the HVDs until closed session. In the end, however, the HVD discussion was held in open session because defense counsel relied on statements from the unclassified portion of the HVD CSRT in support of their reasons to have these detainees produced.

Lieutenant Mizer explained that the testimony of the 3 HVDs is needed because as senior members of al-Qaeda they should know (if anyone does) whether Hamdan is a member of al-Qaeda, whether he is a combatant, and whether he participated in planning and executing any acts that violated the laws of war. Hamdan has admitted to being Osama bin Laden’s driver but not a member of al-Qaeda, and “you’re not an alien unlawful enemy combatant if you are a driver or just a farmer working on one of Mr. bin Laden’s farms,” argued Mizer.

Specifically, the defense argued that their CSRT transcripts indicated that KSM could testify as to whom is a member of the al-Qaeda military committee, and that al-Libi could testify whether he ever screened Hamdan to serve as a fighter for al-Qaeda. Hence, their testimony seemingly would indeed be “relevant and necessary” to the Commission’s jurisdiction. Lieutenant Colonel Britt, however, argued that the prosecution was “not prepared to go to trial” on these issues yet and for the purposes of jurisdiction the access to HVDs is not necessary.

Said Boujaadia

Said Boujaadia, a Moroccan detainee in U.S. custody since November 2001, was actually exonerated by an Administrative Review Board (ARB) in September 2006 and then was cleared to leave Guantánamo for Morocco in February 2007. His departure, however, was put on “hold,” without explanation. When Hamdan’s defense counsel identified Boujaadia as a defense witness for Hamdan’s case, they reportedly were asked by the prosecution that they request a hold be put on Boujaadia’s release. Hamdan’s counsel, however, refused to become the instruments of keeping anyone at Guantánamo. Instead, they asked that a video deposition be held, as allowed by the RMC Rule 703, so that Boujaadia’s sworn testimony could be secured without any need to hold him subsequently at Guantánamo and with the prosecution having the opportunity to cross-examine him. This request was denied. Boujaadia’s counsel, for his part, has requested testimonial immunity under RMC Rule 704, as Boujaadia reportedly fears that should he provide exculpatory evidence for Hamdan the prosecution may take retaliatory action against him.

Judge Allred’s Ruling: No HVDs but Yes to Some Detainees, Outside Witnesses’ Physical Presence Not Compelled

Allred deferred ruling on the defense’s Article 5 hearing motion, but ruled that the prosecution still would be allowed to present evidence in support an “unlawful enemy combatant” status determination for Hamdan.

Allred also ruled on the defense’s motion to produce witnesses for jurisdiction purposes. He denied production of the 3 HVDs for the purposes of establishing jurisdiction on the basis that the motion was untimely under Rule 703, and noted that there were security obstacles to their access. Swift asked “how can one be timely when we don’t even know what the rules are for producing people on the island?” Allred made clear that his ruling was limited to production of these witnesses for the jurisdictional proceeding only, and did not preclude a later defense request for their production at trial.

Allred did order the prosecution to provide defense access to al-Sharqawi. This was greeted as big news, and after the end of the proceedings defense counsel were off in the dark of the night to meet for the first time with al-Sharqawi.

Allred excluded any testimony from one of the Hamdan brothers-in-law, al-Barri, on grounds that his testimony of Hamdan’s activities during 1995-1999 was not relevant. But the judge granted the defense motion to produce Boujaadia as a witness (but this might not mean anything unless the issue of immunity is resolved), and ruled as well that Hamdan’s wife and other brother-in-law could testify, but ordered the defense to question them via telephone instead of bringing them to Guantánamo.

Tomorrow the prosecution is expected to present for the first time in any post-MCA hearing at Guantánamo actual evidence – for an estimated 3-4 hours. Then the defense will be up.