Justice at GITMO

  • by:
  • 08/20/2022

For the Hamdan case, it can’t GITMO better than this.

Salim Ahmed Hamdan, the admitted driver and body guard for Usama Bin Laden, will face evidence regarding his alleged unlawful status today at the military detention center in Guantanamo Bay, Cuba . Hamdan’s path from the battlefield - where he was captured during the invasion of Afghanistan - to a courtroom in Gitmo is storied, with stops at the Supreme Court of the United States, the United States Congress, and even an appellate court or two.

But today’s action may trump them all in importance, as it may very well turn into the first time in recorded legal history that an alleged enemy of the United States has his status as a combatant determined in a judicial proceeding as opposed to an administrative one.

But before jumping into the events taking place at Gitmo today, we have to understand what’s been happening on the Hamdan case since he was captured.

Hamdan’s first time before a military commission was in November of 2004, but it was cut short when the U.S. District Court for the District of Columbia determined that no “competent tribunal” had decided whether he was a POW or not; and that the military commission deciding his case had violated the Uniform Code of Military Justice (UCMJ). More specifically, the court decided that the President, as the Commander-in-Chief, did not have the statutory authority to establish such a tribunal; and that part of the Geneva Conventions (Common Article 3) applied to all prisoners captured in Afghanistan, thus almost (but not quite) providing them with Prisoner of War status (meaning that they had to be treated in a way that differed from how they were treated under the designation of “Unlawful Enemy Combatants”).

Shortly after, the work of the military commissions was halted.

Later, in July of 2005, the U.S. Court of Appeals for the District of Columbia reversed Hamdan’s appeal, stating that the Geneva Convention did not apply to members of Al Qaida and thus were not judicially enforceable. The tribunals were also deemed to be legal, but the reason why is so wrapped up in legalese as to be incomprehensible to anyone but a lawyer or a man without a social life (uh, that would be me), so I will spare you. But trust me on this one.

The military commissions were soon back in action. But not for long.

On 7 November 2005, the Supreme Court decided to review the previous decision regarding Hamdan, and on 29 June 2006 ruled in Hamdan V. Rumsfeld that military commissions were not in compliance with the UCMJ and Common Article 3 of the Geneva Conventions. Basically, the Supreme Court decided that the President did not have the express powers beyond those specifically granted to him by the UCMJ to create these specific military commissions; and that members of Al Qaida were entitled to some of the Geneva Conventions’ protections.

Once again, the military commissions were halted.

Then in October of 2006, the United States Congress decided to act, passing the bipartisan Military Commissions Act of 2006, which addressed the Supreme Court’s concerns by explicitly authorizing military commissions and providing them the statutory authority to conduct trials and prosecute detainees for war crimes.

Commissions: back on. And Hamdan was charged again.

But wait! We are not done yet. Take another sip of coffee and read on.

Fast forward to June of 2006, when a judge who was to decide the fate of one of Hamdan’s fellow detainees - the Canadian Omar Khadr - decided that the commission did not have jurisdiction over Khadr’s case.

As Hamdan’s case was next in the docket, his lawyers filed a similar request, challenging the commission’s jurisdiction. Shortly after, the charges against Hamdan were dismissed.

An appellate court later reversed the decision of Khadr’s judge, stating that as the trial judge, he has inherent authority to determine for himself whether the commission has proper jurisdiction over the accused.

(Look – I know this is whole thing is rather taxing. Kind of like an Agatha Christie “whodunit” novel, but without the part about being interesting. But hang in there with me. We’re almost done).

Following the decision of the appellate court in Khadr, the trial judge in Hamdan granted the U.S. government’s request for reconsideration of the dismissal of charges against Hamdan. The motion was granted.

Which brings us back to Hamdan and today’s hearing. Going along the lines of the Khadr case, the judge today will make a determination as to whether a military commission has the jurisdiction to hear the case against Hamdan (note: the judge does not decide guilt or innocence; rather he, as any other judge, acts as a sort of referee to decide the legal sufficiency of the evidence implicating Hamdan as an Unlawful Enemy Combatant. A jury of military officers will ultimately determine Hamdan's guilt or innocence).

So, how will this play out today? Well, for starters, the judge will ask the defense whether they still want to challenge the jurisdiction of the court to review this case.

If the defense says, yes, then the judge will ask the prosecution if they are ready to demonstrate that the court has jurisdiction by presenting evidence. The defense, in turn, will be asked if they are ready to present evidence in order to counter the prosecution (note: the defense COULD say “we are not ready,” but that would not bode well for them, as they have had a lot of time to prepare. It would be akin to not having a gift for your wife on Christmas morning. And I think that we all know how that would go down).

If the above happens, it will amount to a “mini trial,” where a damning amount of evidence will be paraded - for the first time - before the court and the public probably showing Hamdan to be a very bad man.

And the defense does not want this. For years now, the court of world opinion has been solidly against Gitmo, to the point that one might think that only innocent people caught in the wrong place at the wrong time reside there. Tapes, film, witness statements proving otherwise could damage Hamdan’s chances later on down the line to accrue benefits arising from the presumption of innocence in the eyes of the public opinion, the media, and politicians.

But if the defense elects to have a showdown, things may proceed quickly, with a possible outcome being the first time in legal history that an alleged enemy of the United States has his status as a combatant determined in a judicial proceeding as opposed to an administrative one.

That said, a more probable outcome for today is that the defense team - not wanting to enable the prosecution to drag Hamdan through the mud - will tell the judge that they wish to withdrawal the challenge to the court’s jurisdiction at this time (they can - at a later date - review the bidding; but this allows the defense to live to fight another day).

In the absence of a challenge the appellate decision in Khadr directs that a properly charged and referred case is presumed to have jurisdiction.

Hamdan may then choose to enter a plea; however he will most likely defer entering a plea until a later date.

As a result, a period of “motions and filings” would take place (often referred to as the “paper battle”) where the defense could be expected to use other delaying tactics, such as challenging the constitutionality of the court; challenging the constitutionality or the impartiality of the judges; posing the applicability of the Law of War; raising the issue of habeas corpus rights - all in an attempt to string the legal process out as long as possible.

But why?

Because delaying allows for other pressures and court decisions to perhaps positively influence the outcome of the case.

As the case stretches out to next year, politicians, candidates for office, the political parties, and perhaps even the President may be pressured into making a political decision to shut down Gitmo and move all remaining prisoners to the United States, thus starting up a whole new round of legal wrangling regarding jurisdiction, habeas rights, etc.

Additionally, other detainee cases (like Boumediene v. Bush which is to be brought before the Supreme Court today for oral arguments) may result in decisions that may impact the ongoing Hamdan case.

Frankly, there are probably other things that could happen - things that we cannot predict - that would result in a more favorable outcome for Hamdan.

Thus the delaying strategy.

OK: we now have some insight into where Hamdan has been and where it is going. But what does this mean to you and me?

Well, having recently retired from the military allow me to offer just one that comes immediately to mind: that precedent will be established that

- turns battlefields into crime scenes;

- requires Soldiers to “Mirandize” bad guys ;

- forces military operations to become legal operations , where troops in the field will strike an enemy objective and suddenly be thrust into a world of trial judges, attorneys, crime scene recovery, discovery .

- pulls soldiers from the field to testify and defend their actions in a court, resulting in military units becoming combat ineffective for the duration of the trial.

Controlling a crime scene is hard enough in a city like Washington, DC. Imagine having to control a crime scene in a denied enemy territory.

And allow me to leave you with a final thought. I have visited Gitmo twice, and have wrestled with detainee issues in places like Kosovo and Iraq, and I am always left with a feeling of pride as I watch the professionals of our military legal system work tirelessly to give ethical and fair treatment to all.

You may disagree and challenge the concept or structure of the military commissions; you may disagree and challenge recent court and Congressional decisions regarding Habeas Corpus; you may even disagree with and challenge the Administration’s policies. That is all fair game.

But please do not challenge the integrity of the men and woman of our legal system who have taken a Constitutional oath to provide us their best. We can continue to count on them to do what is right.


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