Report from Guantanamo: military commissions continue to fail Hamdan Commentary
Report from Guantanamo: military commissions continue to fail Hamdan
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Deborah Colson [Senior Associate, Human Rights First]: " 'America tells the whole world that it has freedom and justice. I do not see that…You do not give us the least bit of humanity…Give me a just court…Try me with a just law.'

Those were the words of Salim Ahmed Hamdan at his military commission proceeding in Guantanamo Bay this week. Mr. Hamdan interrupted a pretrial hearing during which the lawyers were mired in technical legal arguments to question why the government is trying him in a made-up system pursuant to made-up rules, and to observe that he always loses—even when he wins—because the government repeatedly changes the rules midstream.

Mr. Hamdan, a 36-year old Yemeni citizen, was captured in Afghanistan in November 2001 and has been detained at Guantanamo for nearly six years. He is accused of working as Osama bin Laden's personal driver and armed bodyguard and transporting missiles for use against American soldiers. Mr. Hamdan's lawyers acknowledge that he worked as bin Laden's driver, but they say he was never a member of al Qaeda and never conspired to engage in any terrorist acts.

On Tuesday, Mr. Hamdan became the fourth Guantanamo prisoner to boycott the military commission system. After a 20-minute exchange with the judge, Navy Capt. Keith Allred, Mr. Hamdan announced his refusal to participate in any future proceedings, and he forbade his attorneys from speaking on his behalf without him there.

It is difficult to know why Mr. Hamdan finally gave up on the system this week after having cooperated with his attorneys and the court for so long. One of his lawyers suggested at a press conference that seven years of confinement and several rounds of wins and losses have left Mr. Hamdan feeling increasingly frustrated and depressed.

And no wonder. Up to this point, victory has done Mr. Hamdan virtually no good.

His challenge to the first military commission system established by President Bush made it all the way to the Supreme Court, where he won. In 2006, the Supreme Court held that President Bush's system violated international and U.S. military law. Following the Supreme Court's holding, however, Congress established a new military commission system under the Military Commissions Act of 2006 ("MCA"), shortly after which Mr. Hamdan was re-charged. In December 2006, he was also transferred—with no explanation—from a medium security facility at Guantanamo to solitary confinement. For the past sixteen months, Mr. Hamdan has had practically no human contact and little access to natural light and air. So when Judge Allred told Mr. Hamdan on Tuesday that his victory before the Supreme Court should inspire "great faith in America law," it was only fitting when Mr. Hamdan responded: "I didn't win the case."

Mr. Hamdan's critique was not the only indictment of the military commission system we heard this week. On Monday, Air Force Col. Morris Davis, the former chief prosecutor at Guantanamo, testified on behalf of Mr. Hamdan. Col. Davis has spoken publicly about the flaws in the system many times since his resignation in October 2007, and most of what he said on the witness stand had already been reported in the press.

But his testimony was remarkable nonetheless. Until several months before he resigned, Col. Davis was a staunch defender of the military commissions. In fact, in June 2007, he published an op-ed in the New York Times in which he stated that "the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes." Col. Davis also has no qualms about the case against Mr. Hamdan. He testified on Monday that he believes the charges against Mr. Hamdan are "warranted by the evidence."

And yet this former chief prosecutor agreed to testify for the defense. He subjected himself to cross-examination by the new chief prosecutor; he endured questions about his prior conversations with two former employees who were sitting in the courtroom and continue to work on the Hamdan case; and he opened himself to public scrutiny and the judgment of the court.

He did this because he believes the military commission system will never achieve just results. His concerns are twofold: Col. Davis criticizes the government's willingness to rely on coerced evidence, and he asserts that the system is being run by politically-motivated administration appointees who have repeatedly attempted to interfere with the professional judgment of the chief prosecutor and members of his staff. He spoke of the pressure he received to charge "sexy cases" and to file charges against the high-value prisoners before the next presidential election because, once he "g[ot] the train rolling," "it would be hard for the next president to stop the process."

Col. Davis is not the only Guantanamo prosecutor to have resigned. In fact, four others — Major Robert Preston, Captain John Carr, Captain Carrie Wolf, and Lieutenant Colonel Stuart Couch — preceded him and made similar allegations of political interference and pressure to rely on coerced evidence. It is widely believed that additional prosecutors have also raised the prospect of resignation.

Public confidence in Guantanamo is already at an all-time low. But it is bound to sink even lower if more defendants boycott, and the prosecutors who remain end up trying a series of empty chairs."

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

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