On June 12, when the Supreme Court ruled, in Boumediene v. Bush, that the prisoners at Guantánamo had constitutional habeas corpus rights, it was not immediately clear if the decision would have an impact on the Military Commissions at Guantánamo, the alternative legal system for trying "War on Terror" prisoners that was stealthily established in November 2001 (bypassing the Justice Department, the State Department and the National Security Agency) by Vice President Dick Cheney and his chief counsel David Addington.
Logic dictated that Boumediene would extend to those facing trial by Military Commission, because, under the terms of the Military Commissions Act (MCA), which was passed by Congress after the Supreme Court struck down the first version of the Commissions as illegal in June 2006, prisoners could only be put forward for trial by Military Commission if they had been designated as "enemy combatants" in the Combatant Status Review Tribunals (CSRTs), the administrative review process established at Guantánamo in 2004.
As with justice, however, logic is in short supply in the executive's approach to terror suspects, who have been deprived of the protections of the Geneva Conventions, tortured, coerced or bribed to make false confessions, and, essentially, designated as "enemy combatants" by Presidential whim alone, with the intention, in most cases, of holding them forever without charge or trial.
So here's the problem: In Boumediene, the Supreme Court ruled that the habeas-stripping provisions of the MCA and its predecessor, 2005's Detainee Treatment Act (DTA), which provided for limited review of the prisoners' CSRTs, did not provide an adequate substitute for habeas, and instructed the lower courts to allow the prisoners' habeas cases to proceed. This process is now underway, as I reported here, but those facing trial by Military Commission were not necessarily included, even though their cases involve the same problems relating to habeas, the DTA and the MCA as all the other cases.
On July 3, lawyers for Salim Hamdan, one of 20 prisoners facing trial by Military Commission, raised this unresolved issue, filing legal papers asking District Judge James Robertson to delay the start of Hamdan's trial, and arguing that he should be allowed to challenge his detention in a federal court, based on the Supreme Court's Boumediene verdict. In a 46-page court filing, his lawyers wrote, "This case raises the question of whether the constitutional right to habeas corpus can be rendered illusory by subjecting an individual to an unconstitutional trial by military commission. Trying Hamdan under a dubious regime whose very legality has been called into question would reduce the legitimacy of the proceedings in this country and in the eyes of the world."
Last Thursday, Judge Robertson heard oral arguments from government lawyers and from Hamdan's civilian lawyer, Neal Katyal. Robertson and Katyal had met before. In 2004, in what the New York Times described as "a theatrically timed federal court injunction," Judge Robertson called a halt to the Commissions, on the basis that the CSRTs did not reach the level of a "competent tribunal," as demanded by the Geneva Conventions. He also ruled that, until a "competent tribunal" determined that Hamdan was not a Prisoner of War (PoW), as defined and protected by the Geneva Conventions, he had the right to be tried under the same judicial system as US soldiers, and added that, even if he was determined not to be a PoW, the Military Commissions as they stood were inadequate and would not be allowed to proceed until their rules were revised to accord with the federal laws governing the trial of soldiers. In a final blow to the administration, Judge Robertson specifically addressed Hamdan's detention in Guantánamo, ruling that he was not to be held indefinitely in solitary confinement and should be returned to the rest of the prisoner population.
This was a significant victory for Hamdan, of course, and although it only lasted until July 2005, when it was overturned by the Court of Appeals, that decision ultimately led all the way to the Supreme Court, where Hamdan gained his second victory in June 2006, in Hamdan v. Rumsfeld, the ruling that finally derailed the first version of the Commissions.
Last week, however, Hamdan's run of significant court victories came to an end, after a two-hour hearing with Judge Robertson in which both sides put their cases. Defending the process, and Hamdan's eligibility for the trial, lawyers for the government said, as the Christian Science Monitor explained, that the Commission process "was created by Congress and features an impartial judge and jury, as well as a 'full panoply' of trial rights." In a court filing, Justice Department lawyer Alexander Haas declared, "Such rights for an alien charged with war crimes are utterly unprecedented and far exceed the protections given to the defendants [in prior war crimes tribunals]."
In response, Neal Katyal's brief stated, "The Government notes that the public has a strong interest in the prompt, effective, and efficient administration of justice. Hamdan could not agree more. But ... rushing to try him just weeks after the Supreme Court has upended the foundations for his commission and acknowledged his right to habeas will lead to confusion, inefficiencies, and uncertainty." He added, "All he wants is a fair trial. If individuals merely being detained have a right to challenge their detention, then detainees who are set to be tried must have an even stronger right to challenge a trial that may result in life imprisonment or death."
Judge Robertson, however, had other ideas. Siding with the government, who had also declared, "The purpose of constitutional habeas is to test the legality of detention, not to challenge a trial in advance" (even though there were obvious chicken-and-egg conclusions to be drawn from the statement), Judge Robertson agreed that, under the terms of the MCA, Hamdan's lawyers were required to wait until a verdict was reached in the trial before raising constitutional challenges. Curiously, however, he made no mention of how ironic it was that he had ended up defending a much-criticized piece of legislation that had only come about because of the Supreme Court's dismissal of the original Commission system in which he, of course, had played a major part.
And so, on Monday, despite having twice secured significant legal victories, Salim Hamdan was brought from his cell to face the first full US war crimes trial since the Second World War. Noticeably, however, the administration refrained from trumpeting the proceedings as the 21st century's answer to the Nuremberg Trials, even though comparisons with the Nazi war trials have often featured in the government's rhetoric.
Perhaps this was because of Col. Morris Davis. The Commissions' former chief prosecutor, Col. Davis resigned in October 2007, complaining that his superiors had politicized the process, and explaining that he could not continue in his job because he refused to take part in trials that allowed evidence obtained through torture. In February 2008, Col. Davis reported that, during a discussion of the Nuremberg Trials with the Defense Department's chief counsel William J. Haynes II, in which Davis noted that there had been some acquittals, which had "lent great credibility to the proceedings," Haynes told him, "We can't have acquittals. We've been holding these guys for years. How can we explain acquittals? We have to have convictions."
Or perhaps it was because, in the absence of Adolf Hitler, Nuremberg's convenors did not respond by putting one of his drivers on trial instead.
The government alleges that Hamdan was more of a player in al-Qaeda than merely part of the motor pool, and it's possible, I suppose, that his trial will reveal who is telling the truth. More likely it will reveal more about the sleep deprivation (50 days straight) that Hamdan endured, the sexual humiliation, the prolonged isolation, and the cruel effect of all this treatment on his mind, as well as more about an explosive revelation by the former FBI interrogator and "al-Qaeda expert" Ali Soufan, who explained on the trial's second day that Guantánamo, as the Associated Press described it, "is the only place in the world where he has not informed suspects of a right against self-incrimination." "The way it was explained to us," Soufan said, "is Guantánamo Bay is an intelligence collection point."
Judge Allred, presiding over the case, has already stated that he will rule out testimony obtained coercively while Hamdan was held in Afghanistan, but it seems unlikely that he will be able to explain how Hamdan's treatment in Guantánamo was justified -- and how it continues to be justified. It also seems unlikely that Judge Allred will be able to explain why, after being imprisoned for almost as long as the Second World War, Salim Hamdan is not in fact a Prisoner of War, protected from sleep deprivation, sexual humiliation, prolonged isolation and sustained interrogation by the Geneva Conventions, and entitled to ask, as a prisoner who can be held until the end of hostilities, if it is really feasible for the government to declare that it is engaged in a "war" that might last for generations.
This, I think, is the conversation we should be having, but it will clearly not happen until something else forces the collapse of the administration's foolish and unjust substitute for a fair trial.
For more on Salim Hamdan's story and the legal challenges to Guantánamo, see my book The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison (published by Pluto Press/the University of Michigan Press).