Roger Fitch

Roger Fitch Esq • May 17, 2008

Our Man in Washington

Guantánamo trials in crisis – legal adviser sacked for wanting torture evidence to be admitted and prosecutors quit in disgust over government meddling. Law of terror correspondent Roger Fitch reports

It looks likely that Salim Hamdan, the notorious bin Laden driver, will be the first to go on trial – if anyone does – before a Guantánamo military commission.

It was, of course, Hamdan’s earlier military commission that the Supreme Court struck down as an unconstitutional fantasy of George W. Bush.

Hamdan is charged with “conspiracy” and “material support for terrorism” for acts predating the war, and neither charge is an offence under the law of war.

In fact, in Hamdan’s own case, a plurality of the US Supreme Court confirmed that “conspiracy” is not a war crime. The “crimes” were in any case created in 2006, long after they were said to have occurred.

Hamdan’s trial has now been postponed till after the Boumediene case is decided, making it less likely he will ever receive a trial, fair or otherwise.

At least hes the only Gitmo prisoner whose detention doesn’t, on its face, violate the Geneva Conventions.

All the other prisoners – nearly 800 – ever bailed up at Gitmo were held without the protections of the Third Geneva Convention, whose Article 5 requires a preliminary hearing to determine if a detainee is entitled to prisoner of war status.

Under “Geneva III” and implementing domestic law of the US – both extralegally suspended by Bush – those taken prisoner in a war are presumptively entitled to prisoner of war status until such time as they have received their Article 5 determination.

Salim Hamdan (seen here) has the distinction of being the only detainee who received this hearing, though it was conducted not by an independent “competent tribunal” but rather the same judge hearing the accused’s military commission, Navy Captain Keith Allred.

In December, Judge Allred ruled that Hamdan was not a PoW, and he later decided that Geneva IV’s civilian protections didn’t apply.

This left Hamdan with only the rights of Common Article 3, e.g. trial “by a regularly constituted court affording all the judicial guarantees … recognized as indispensable by civilized peoples”.

Still, Judge Allred’s grant of an Article 5 hearing provided a precedent in the ad hoc Guantánamo proceedings that will probably need to be followed in the cases of Omar Khadr and other detainees awaiting military commissions.

Already, six ethnic Uighurs from China who are held in Guantánamo are arguing before the Court of Appeals for the Armed Forces that they are entitled to Article 5 hearings, citing Allred’s Hamdan ruling.

* * *

At the end of April, the Guantánamo hearings resumed, with motions in the Hamdan case taking the spotlight. The Washington Post has more.

This time Hamdan’s very sanity was on the line in a motion challenging the Guantánamo proceedings.

While Hamdan had virtually withdrawn from his case, evidence was taken on his motions, e.g. the testimony of defence witness and former Chief Prosecutor Col Morris Davis (pic) that the prosecutors had been subjected to unlawful command influence.

The Miami Herald provided a copy of the motion to dismiss.

Knowledge of the motion is due entirely to Hamdan’s counsel sending copies to reporters, as the Office of Military Commissions refuses to post most motions on the commission website until after they have been argued and ruled on.

Instead, the motions and responses circulate by internal email and, when eventually posted, are buried in massive PDFs running to hundreds of pages.

By contrast, documents in the original commissions were individually posted and can still be viewed.

In addition to the testimony of former Chief Prosecutor Morris Davis, the defence put into evidence the statements of two Hamdan prosecutors, Lt Col William Britt and Lt Cmdr Timothy Stone.

Their statements criticised the meddling of the commissions’ supposedly independent “legal adviser”, Brig Gen Thomas Hartmann (pic), and were given during an internal investigation that followed claims by Col Davis of interference in the prosecutions.

The Nation has more.

The criticism by prosecutors Britt and Stone comes after the transfer or resignation of at least five other disaffected prosecutors.

They include Major Robert Preston, Captain John Carr, Captain Carrie Wolf and Lt Colonel Stuart Couch. They withdrew, apparently complaining of the micromanagement and interference that also forced Davis out.

When Hamdan’s case reconvened on May 7 it was in the new “Expeditionary Legal Complex”, formerly known – without a trace of irony – as “Camp Justice”.

Ominously, nothing worked: sound, and even lights, failed.

Human Rights First has more on the day’s baleful events.

The following day, things continued to run off the rails for the Bush administration.

In the case of the Canadian Omar Khadr, captured when he was 15 and detained as an adult, Judge Peter Brownback threatened to suspend the trial unless the government produced a detailed log of the defendant’s treatment (e.g. interrogation) over five years.

Things are still looking grim for Khadr, as Scotusblog explains.

On the third day, Judge Allred ruled on Hamdan’s unlawful command influence motion. He decided that the detainee’s case could not proceed until the commissions’ legal adviser, General Hartmann, was removed.

Interestingly, Judge Allred accepted that Col Davis could reasonably believe Hartmann’s superior, Pentagon counsel “Jim” Haynes (pic), advocated both the use of torture and the use of evidence obtained by torture.

Later that day, the person Gen Hartmann advises, Commissions Convenor Susan Crawford, rejected his previous recommendation and dismissed the charges against one of the Guantanamo Six, Mohammed Al-Qahtani, a man whose published torture log is “missing” (see my post of April 25).

Crawford allowed the others to go forward, but within days, the lawyers for these defendants had filed a 127-page motion seeking dismissal on the basis of Hartmann’s interference.

That’s significant, as Hamdan lawyers have been arguing that he was tortured or at least assaulted.

A surprise in Allred’s ruling is the revelation that Hamdan’s lawyers made plea bargain overtures last year. When Hartmann intervened and tried to cut Col Davis out of the loop, Davis filed his complaint.

Somewhere in the process, plea discussions lapsed.

* * *

New torture letters have been produced from one Brian A. Benczkowski, a previously unknown “lawyer” in the Justice Department.

The letters purport to allow torture by the CIA on a sliding scale of need.

This attracted the condemnation of the law professor Jordan Paust, among others.

Meanwhile, the wash-up from John Yoo’s torture memo du jour (see my post of April 11) continues, with Jennifer Van Bergen taking a look at the abuse being heaped upon it.

As the original and most prolific of the torture-enabling DoJ lawyers, Yoo is heading to Washington to testify before John Conyers’ House Judiciary Committee.

He’s been subpoenaed to testify on June 26 about torture, around the time the Supreme Court should be ruling in the Boumediene-Al Odah detainee case.

Former AG John Ashcroft will also be fronting-up at Conyers’ (pic) committee and should have cogent testimony to offer on torture.

Ashcroft has been reported as distinguishing American water torture from the others (e.g. Spanish Inquisition, French in Algeria, the Khmer Rouge) along these lines:

“We don’t force the water, we pour – big difference!”