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Critics of the Guantanamo tribunals have expressed serious reservations about the overwhelming power imbalance in favour of the prosecution in military-commission cases. The trials, skeptics maintain, are so predetermined as to be shams masquerading as military justice. Yet the U.S. government has been on the losing side of an increasing collection of judicial rulings, successful defence motions, appeals and precedent-setting Supreme Court decisions.
A silver lining seems to be emerging from the Guantanamo cloud.
Consider the case of Salim Ahmed Hamdan, Osama bin Laden's driver and one of 275 detainees still being held in Guantanamo Bay. He is charged with conspiracy to commit terrorist acts and was captured in Afghanistan in 2001 with two surface-to-air missiles in the trunk of his car. "The only things in the air at the time," noted Colonel Morris Davis, the former chief prosecutor, "were doves and us."
Mr. Hamdan's formal trial is scheduled to begin on July 31, but pretrial hearings have been going on for some time. I attended his open military-commission hearings as an academic observer from April 27 to 29, along with a large press contingent and several representatives from prominent human rights organizations.
A Guantanamo detainee peers through a hole used to allow food and other items into cells. (AP/File)
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As "unlawful enemy combatants," detainees at Guantanamo are denied some of the most basic rights and privileges afforded other defendants under U.S. civilian or military criminal law. Most of them have spent years in detention without access to legal counsel; many are still unaware of the charges against them; very few have been given an opportunity to face their accusers or see (let alone challenge) the government's evidence; none of them were protected from supplying self-incriminating evidence; most experienced coercive interrogation; and several suffered cruel, inhuman and degrading treatment (the defining traits of torture). Involuntary confessions make up a substantial portion of the evidence against them.
Col. Davis gave perhaps the most remarkable testimony in Mr. Hamdan's case. He resigned as chief prosecutor of the military commission in 2007 because of what he viewed as unlawful influence. On the witness stand, he painted a vivid picture of the pressure he was under from superiors to prioritize "sexy" cases for maximum political benefit.
Col. Davis all but confirmed that powerful, security-conscious officials in the Pentagon jeopardized the chief prosecutor's independence by forcefully guiding the military commissions' pace and direction. His testimony helped to reinforce the image that prevails in the media of a process plagued by a pathological administration resolved to impose its will on the trials, with no checks or balances.
But that was not the impression I formed as an observer.
Mr. Hamdan's defence team relentlessly challenged every aspect of the prosecution's case — demanding that their client be allowed to communicate with other detainees in order to refute the conspiracy charge, requesting access to witnesses on the no-fly list or to classified information from Mr. Hamdan's interrogation records, objecting to his pretrial confinement and treatment, making a strong case against the admissibility of self-incriminating evidence obtained through coercive interrogations, and so on. Dozens of defence motions have built up the strongest possible collection of arguments and strategies in preparation for the jury trial.
DEDICATED DEFENCE TEAMS
I spent much of my time at Guantanamo discussing the case with four exceptionally bright lawyers from Amnesty International, the American Civil Liberties Union, Human Rights First and Human Rights Watch, highly committed to uncovering problems with the military tribunals. Their criticisms and concerns were never directed at the defence teams. "It's not about the defence," one of them insisted.
Mr. Hamdan himself said, "I do have confidence and trust in God with the lawyers I have." Judge Keith Allred replied: "These people have their lives tied up in your defence. They are here to protect you. You should have great faith in American law. You beat the United States once in our system" — a reference to the Supreme Court's 2006 ruling in Hamdan v. Rumsfeld on the Bush administration's first effort to prosecute captured al-Qaeda and Taliban fighters. The majority concluded that the commissions violated the Uniform Code of Military Justice and the Geneva Conventions of 1949. In essence, the government had no right to establish the commissions without congressional approval — which it then went on to obtain, when Congress passed the Military Commissions Act in 2006.
