Rene — The Hamdan War Crimes Trial: An Illusion of Justice
Topic(s): Guantanamo Bay | Comments Off on Rene — The Hamdan War Crimes Trial: An Illusion of JusticeThe Hamdan War Crimes Trial: An Illusion of Justice
The Huffington Post
August 7, 2008
After 7 years, the Bush administration got its first war crimes
conviction but not of anyone who plotted the 9/11 attacks, but that of
Osama bin Laden’s driver. Yemeni national Salim Ahmed Hamdan’s crime
was to chauffeur bin Laden in Afghanistan, which the government argued
allowed bin Laden to plot attacks against the United States. Hamdan
was convicted for material support for terrorism and could spend the
rest of his life in prison. In fact, whatever sentence a court may
determine, the Bush administration claims that it has the authority
to hold him indefinitely as an “enemy combatant” until the cessation
of hostilities in the so-called “war on terror.”
Hamdan, who has a fourth-grade education and was earning $200 a month
as one of Osama bin Laden’s drivers, has been detained for almost
seven years now. It was Hamdan’s case in 2006 that led the Supreme
Court to rule that President Bush lacked the authority to constitute
military tribunals, but Congress subsequently enacted the Military
Commissions Act (MCA) to re-constitute those tribunals, rendering
Hamdan’s victory worthless to him.
I observed Hamdan’s trial in Guantánamo Bay, Cuba for Human Rights
First. At trial, a parade of government criminal investigators
testified that Hamdan was not involved in any terrorist attacks,
such as the USS Cole bombing, the Kenya embassy bombings, and or
even 9/11. But Hamdan was charged with conspiracy and providing
material support to a terrorist organization. The six-member jury,
however, convicted him of material support of terrorism. Material
support and conspiracy are prosecutable under federal criminal law
and many persons have been prosecuted in federal courts under such
crimes post 9/11. Hamdan could thus very well have been prosecuted in
federal court but the government instead decided to make such offenses
war crimes. This in legal terms is ex post facto application of the
law-making something a crime when it was not a crime at the time it
was committed — and is prohibited by the U.S. Constitution.
To make the case that military commissions are prosecuting war
crimes, the government has argued, as it did in the case of Hamdan,
that the United States and al Qaeda have been at war since the early
1990s. This is remarkable since most Americans never heard of al Qaeda
until 2000. But the government’s view is that al Qaeda in its speeches,
websites, and fatwas declaring war on the United States were sufficient
to trigger the laws of war. At Hamdan’s trial, the government debuted
“The al Qaeda Plan”-a made to order $20,000 movie comprised of al
Qaeda propaganda videos found on the Internet to prove, amon g other
things, the government’s analysis of when the armed conflict with al
Qaeda began. This interpretation of when an armed conflict begins or
ends is a dangerous stretch, as it would allow any group to say that
it is at “war,” and would thus trigger a state of armed conflict.
Hostile acts, including terrorist attacks that take place in a
non-international armed conflict (i.e., a conflict not involving
two or more nations), do not automatically trigger the application
of the laws of war. But the Bush administration has changed the
rhetoric in order to prosecute terrorism from a military rather than
criminal approach, thereby giving the government the flexibility to
use deadly force and detention powers typically not available in a
law enforcement framework.
At the Hamdan trial we learned that the government gave the “The
al Qaeda Plan” its name, in order to draw a comparison to “The Nazi
Plan,” a documentary movie produced sixty years ago by the U.S.-led
prosecution for the post-World War II Nuremberg trials. “The Nazi Plan”
was based on German footage that showed the defendants charged in
those prosecutions meeting with Hitler. Hitler’s driver, incidentally,
was not prosecuted at Nuremburg.
Government witnesses testified that Hamdan is a marginal figure,
a cooperating witness, who provided useful information to the
government. He identified al Qaeda members from=2 0photographs and was
willing to testify against a senior al Qaeda figure. Every one of the
statements Hamdan made to interrogators in Guantánamo is now being
used to convict him. Government investigators in Guantánamo did not
advise Hamdan of his right to counsel because, as they testified in
court, it was the policy of the United States government not to give
Miranda warnings to Guantanamo detainees. Moreover, we learned that
the interrogations were for purpose of intelligence gathering and
not criminal prosecution. Notably, many of these same interrogators
routinely issued rights warnings in Yemen after the 2000 bombing of
the USS Cole and in Kenya after the 1998 embassy bombings, except
in Guantanamo.
Issues like Miranda and self-incrimination are essential for a trial
to be considered fair. An individual has the right to know that he is
the subject of a criminal investigation, when being questioned by a
government agent. We are not talking about battlefield interrogations
in Afghanistan, but interrogations at a U.S. base where Hamdan was
given promises of a phone call to his wife if he cooperated.
The impact of the absence of any Miranda-type warnings became clear
in Hamdan’s case. We heard testimony that even though Hamdan had been
previously been interrogated 40 times, a Pentagon counterintelligence
agent nevertheless flew to Guantánamo with a military commissions’
prosecutor to question Hamdan. At trial, we learned that this visit
was not about getting additional intelligence.
Instead, the witness, who described himself as an excellent trial
witness, met with Hamdan without advising him about legal counsel to
find any gaps in previous interrogations so as to make an airtight
prosecution case against Hamdan.
There are two faces of Guantánamo. The one that the military
commissions proceedings are now highlighting features “clean teams,”
comprised of professional FBI agents who have testified about Hamdan’s
admissions obtained using rapport-building techniques. This face
of Guantanamo will be showcased in the upcoming trials, especially
those of the September 11 defendants, in which torture will be a
central issue. The aim is clearly to deflect charges that the United
States has used coercive means to gather evidence. The military
commission rules, unlike those in federal civilian courts, and the
court-martial system allow for evidence obtained under coercive means
to be admitted provided that the evidence is reliable and is in the
interest of justice.
But before the clean teams were deployed, there was the other face
of Guantánamo, that of interrogations conducted by military and
intelligence officials using techniques approved by Secretary of
Defense Donald Rumsfeld such as sleep deprivation, stress positions,
exposure to extreme temperatures, and sexual humiliation. But
the public won’t learn about coercive interrogation techniques at
trial because that is considered top secret. In fact, in response to
allegations that Hamdan had been subjected to sleep deprivation prior
to being interrogated, the judge issued a ruling that was largely
redacted. We saw pages and pages of black ink that presumably referred
to sleep deprivation. Any hint of misconduct whether proven or not
is automatically classified! Secrecy in effect is used to shield abuse.
In the Hamdan case, the government requested a protective order that
forbids mention of the CIA. The impact of this is so broad that it
extends to public documents. At trial, Hamdan’s lawyer held up the
9/11 Commission Report to question a government witness, but he was
prevented from reading a sentence from the report by the government
on classification grounds. This, despite the fact that the report is
not only a public document but also a New York Times bestseller, only
underscores the arbitrary nature of the level of secrecy that affects
the military commission proceedings. When two defense witnesses, one
of whom is with Special Forces, were about to testify about events
in Afghanistan, the NGO observers and the media were cleared out
of the courtroom because we did not have a security clearance. So,
we never heard how Hamdan was treated by intelligence officers or
cooperated with U.S. forces in Afghanistan.
If any benefit is it come out of the Hamdan case, it will be, if
nothing else an instructive example of how to defend a client without
full discovery. Despite discovery orders, the government refused to
provide the requested documents. Twelve hours before trial began, and
even during trial, the government suddenly produced some requested
documents. One of those documents includes a female interrogator’s
account of her sexual humiliation of Hamdan, while other documents
describe Hamdan being woken repeatedly in the night and moved between
cells 0- including the night before his interview with an interrogator.
Hamdan has been in custody since November 2001 but the government
failed to turn over to the defense requested documents. In fact,
we learned that there are several “black holes” in Hamdan’s detention
records. An entire month of Hamdan’s detention when he was interrogated
by intelligence agencies in Afghanistan is unavailable. This reflects a
deliberate compartmentalization of evidence where documents necessary
for conviction are available, but records regarding conditions of
confinement and abusive interrogations are not.
The government will undoubtedly tout the Hamdan trial as a success
for the military commissions system. But the outcome for any trial
in this flawed system is pre-determined. The military commissions
appear to have the trappings of a fair and open trial but there are
not. It was the government and not an independent court that decided
Hamdan’s fat e.
Sahr MuhammedAlly is a senior associate in Human Rights First’s Law &
Security Program. Sahr works through research, litigation and advocacy
to ensure a greater understanding of and respect for human rights in
U.S. national security policy.