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Report from Guantánamo: The US Constitution is on trial

Frank Kendall [volunteer consultant, Human Rights First]: "From July 14 to July 18, I attended several pre-trial motions hearings in Guantánamo Bay, Cuba, for Salim Hamdan [HRF backgrounder], who is now in his second week of trial before a Military Commission there. I feel fortunate to have had this opportunity because these hearings were, in my mind, of at least as much significance as the trial itself. Although Hamdan wasn't yet on trial during the motions hearings I saw, our Constitution was, and it didn't fare very well.

The recent Boumediene [pdf] decision by the Supreme Court determined that Hamdan and other Guantánamo prisoners do have the right under the Constitution to bring a habeas corpus petition in federal court challenging the legality of their detention, but the Boumediene court left open the question of what other rights they might have under the Constitution. This prompted a flurry of motions by the Hamdan defense that included constitutional claims to:

  • Equal protection of the law — the Military Commission Act (MCA) applies only to aliens;
  • Speedy trial — Hamdan has been held without trial since 2001;
  • Trial by jury — the Commission members are military officers, and can convict by a mere two-thirds vote; and
  • Protection against:
      • Ex post facto prosecution — conspiracy and material support were never considered "war crimes" before passage the MCA in 2006;
      • The prosecution's introduction of hearsay evidence that deprives Hamdan of his right to confront his accusers — most of the government's evidence is hearsay;
      • Coercion — Hamdan asserts that he experienced abusive and coercive treatment from the time he was taken into custody in 2001; and
      • Self-incrimination — in addition to the alleged coercion, Hamdan was never advised of any right to remain silent or that his statements could be used against him at trial.
If these motions had been substantially successful Hamdan's trial would either not be occurring, or much of the government's evidence would have been suppressed. The trial, of course, is proceeding.

Some friends have asked me if Hamdan is "guilty," or "a bad guy." Their assumption seems to be that if he is either of these things that no real injustice will be done, even if the process by which he is being tried is flawed. This is a dangerous perspective. I believe that there are much larger issues at stake here, issues that ultimately, when all appeals are exhausted, can create legal precedents that could haunt us for many years to come. In any event, Hamdan's military judge found his way around almost all the constitution claims so that Hamdan's trial could proceed. Let us consider how that was accomplished.

Navy Captain Keith Allred, Hamdan's judge, concluded that two of the claims — ex post facto and speedy trial — simply lack validity, even if the relevant protections of the Constitution apply to Guantánamo detainees. In regard to ex post facto, the military judge deferred to Congress' conclusion that conspiracy and material support to terrorism were already criminal acts before the MCA, either as war crimes under international "common law" or under domestic law in some form, so that the conduct with which Mr. Hamdan was being charged was merely codified anew under the MCA, and therefore not an Ex Post Facto Clause violation. As to speedy trial, the judge found it unnecessary to reach the constitutional question, as Hamdan's right to a speedy trial had not been denied: Hamdan was being held as an enemy combatant along with other enemy combatants and not solely in contemplation of criminal trial, so none of those years of detention count in a speedy trial calculation.

On two other motions, equal protection and trial by jury, the military judge crafted a set of "factors" to evaluate and weigh, based on his interpretation of Boumediene. Those factors were: (1) the citizenship and status of the detainee and the adequacy of the process by which that status was determined (alien unlawful combatant finding by a Combatant Status Review Tribunal [HRF backgrounder] or military judge); (2) the site of apprehension and detention (Afghanistan); (3) practical considerations and exigent circumstances (the desire to deter people from becoming unlawful combatants); (4) the adequacy of any alternative right provided (trial by Military Commission); (5) the necessity of applying the constitutional protection at issue to prevent injustice (the Military Commission process is adequate); and (6) whether application of the constitutional protection would be impractical or anomalous (extending more rights to alien unlawful enemy combatants would be anomalous because they don't merit protection).

Judge Allred's rulings on these issues will certainly not be the final word. Appeals to the Military Commission Court of Review (a special military appellate court established under the MCA) and to the D.C. Circuit Court of Appeals — and perhaps to the Supreme Court — will surely follow. But let us assume that the military judge's rulings endure. I find this prospect very troubling, particularly the decisions invoking a multiple-factor, subjective test of the applicability of constitutional rights.

What Judge Allred has ruled is that an individual's legal protections are determined subjectively, based on the circumstances. The single most important factor in the judge's set of factors seems to be the first one — the citizenship and status of the detainee. Here, the judge found that the detainee was an alien and an unlawful enemy combatant and that this weighed against providing him with constitutional protections. (The other factors were all found to weigh against the application of the Constitution, but this one dominated.) Factor six even returns to the status finding and concludes it would be "anomalous" to extend more protections to people who have already been found to be unlawful enemy combatants.

What we have then, is a system whereby the executive determines that some people fall into a class of "bad actors." In this case the military judge — a judge also belonging to the executive branch — subsequently concurred in that determination. Once this is done, the "bad actors" may then be denied constitutional protections, particularly if they are detained in a remote place like Guantánamo (also under the control of the executive). This is circular reasoning at best. One has to ask whether such a system would be regarded as fair and acceptable if applied to American citizens detained by a foreign power, or perhaps someone who speaks out against Chinese oppression in Tibet, or someone who advocates more freedom for women in Saudi Arabia. I think not.

I believe we need to step back from the question of what these defendants have done and how they should properly be tried (and, where appropriate, punished), and consider how the fundamental protections of the Constitution should or should not be extended to persons detained under U.S. government control. Should we be applying largely subjective, multi-factor tests based on a variety of circumstances to each defendant or class of defendants? Or, should we apply a well-thought-out, proven legal basis for dealing with detainees suspected of criminal acts related to terrorism that is consistent with our values and the Constitution?

To me the answer is obvious. Our constitutional protections are not uniquely American, they reflect human rights norms that should be applied everywhere and, as it says in the Fifth Amendment, to all "people." They should not be denied to some people because they have been found to be members of a class of "bad" people who don't merit protection. This is a very dangerous road for us to walk down."

"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First

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