Military Commission Proceeding Against Salim Hamdan: The Military Commission Trial Shows Its True Colors

July 24, 2008
Guest Post


by Aaron Zisser, the Kroll Family Human Rights Fellow at Human Rights First, who is in Guantánamo to monitor the proceedings in the terrorism case against Salim Hamdan. See Monday’s, Tuesday’s, and Wednesday’s posts. Additional reporting by Frank Kendall is available here.

Guantánamo Bay, Wednesday, July 23, 2008.  It is not yet clear why Salim Hamdan got up from the table during his trial today, instructed his defense counsel not to speak for him in his absence, apologized before leaving, and ultimately left the proceedings, only to return some minutes later and apologize again. It should become clearer when he speaks to the jury tomorrow. He asked today if he could apologize to them and explain.

But one thing is clear: something about the proceedings is frustrating Mr. Hamdan a great deal. This is not the first time he has expressed such frustration. He has threatened to boycott and walked out before. It may be that he is stressed by competing pressures to retain his counsel and proceed, represent himself, or boycott altogether, as other detainees are urging him to do.

Coercion in “The Capture Video”
It is also difficult to imagine that it was a mere coincidence that he left during the viewing of an interrogation video that was taped very soon after his capture in November 2001. Mr. Hamdan (probably to his humiliation) is seen seated on a dirt floor, hooded, and then questioned for approximately 45 minutes.

Mr. Hamdan returned during the viewing of a second such video shown immediately after the first. In the second video, he is hooded at the beginning, then the hood is removed, and it is replaced after some period of questioning. During the second hooding, a soldier wraps his arm around Mr. Hamdan’s neck in a chokehold-ready position, with Mr. Hamdan still seated on the floor. He is released, unhooded, and questioned again.

The defense had sought to exclude these videos on the ground that the statements were made under coercion. Mr. Hamdan does indeed make some incriminating statements, though the prosecution’s reasons for showing the entire video are not clear.

There is a reason the ordinary criminal justice system excludes coerced statements, regardless of whether they might be deemed reliable. While coerced statements are inherently tinged with some level of unreliability, the larger reason to exclude these statements is that coercion does not belong in a civilized justice system. The defense is not arguing that battlefield conditions warrant the same protections as other contexts. They did not seek exclusion of the statements based on a failure to provide counsel or warn Mr. Hamdan of a right against self-incrimination following his capture.

As chief defense counsel Colonel Steven David said today after the proceedings, “Why are we here in Cuba in 2008?” We are a civilized country with a working judicial system that knows how to deal with terrorism prosecutions. [See HRF’s report on prosecuting terrorists in federal courts.] “We can do better than this,” said Colonel Davis. Indeed, we have done better than this, hundreds of times, in the time-tested system of our federal courts.

The videos by no means portray the worst that happened to Mr. Hamdan — or other suspected terrorists in U.S. captivity. Worse happened to him after his transfer from the site of his capture to other locations in Afghanistan. Statements made during some subsequent interrogations have been excluded. But the treatment need not qualify as torture to be coercive.

The Bigger Picture: A Bad Paint Job
This points to a larger issue that Colonel David has emphasized and that has been clear to me since my first day here. The judge’s black robe and the wood paneling in the courtroom are a superficial gloss giving an appearance of justice and fairness. But once you peel away the gloss and expose what lies underneath, its true colors appear. Beyond the black robe and other physical items in the courtroom that give a semblance of normality, there are other, more subtle deceptions.

For example, a sympathetic and capable FBI investigator who continued his testimony today apparently treated Mr. Hamdan with respect during interviews at Guantánamo and clashed with prison guards who made his job more difficult by compromising his rapport with Mr. Hamdan. The witness smiled broadly at Mr. Hamdan in the courtroom. But all of the statements he elicited from Mr. Hamdan came during interrogations not preceded by any Miranda-type warnings and absent any access to a lawyer.

More peeling: The judge has made rulings excluding some coerced statements, but he has admitted other coerced statements into evidence. The judge has entertained some hearsay objections, but he has also considered hearsay objections under an alternative, more lenient standard. The prosecution has disclosed thousands of pages of documents, but those documents have been heavily guarded by the government and disclosed in an untimely manner. Colonel David mentioned today that the defense has asked for additional legal assistance in Washington to help review the discovery.

The paint keeps cracking, and the Administration seems to think people won’t notice.