“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?”