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
Guantánamo Bay, Friday, July 18, 2008. Salim Hamdan’s defense counsel noted today that while Hamdan was offered Fig Newtons after thirty months of confinement, he still has not been granted the fundamental rights afforded to defendants in federal court. As has been common in these proceedings, the judge must make up rules as the proceedings go along, even three days before the first military commission trial in more than sixty years is set to begin. [They started this morning.]
The Central Constitutional Question: Which Rights?
The key issue for military commission Judge Keith Allred to decide over the weekend is whether Hamdan, who is accused of being Osama bin Laden’s driver (among other things), is entitled not just to Fig Newtons, but the rights provided for in the Fifth Amendment and other core constitutional provisions.
This is a bizarre question for me to even consider. No lawyer ever uttered the words “Fig Newton” — let alone in the same breath as “fundamental rights” — before the federal district court judge that I worked for after law school. Judge Allred’s black robe and the wood paneling in the military commission courtroom are familiar to me, but many of the issues were surreal. Two-hundred years after the Constitution was ratified, these questions of whether to recognize fundamental rights should not be a question in an American court. In addition, the struggle to resolve these issues and set the ground rules for Monday seems wholly unnecessary: ordinary federal courts are a reliable and legitimate alternative to military tribunals. They have amassed years of experience trying terrorism cases and use time-tested rules and procedures to resolve complex legal issues.
Judge Allred recognized that terrorism cases are often prosecuted in federal courts, so why not here? The prosecution’s response — that it is the Administration’s prerogative — is specious at best.
The recent Supreme Court decision in United States v. Boumediene held that Guantánamo detainees have the right to habeas corpus, that is, the right to challenge the legality of their detention in federal court. The Court did not address the Fig Newton dilemma, however — it did not decide whether other constitutional rights extend to detainees held in Guantánamo. So Judge Allred asked counsel to provide him with cases that point to the extraterritorial application of the Constitution. Are both Fig Newtons and fundamental rights available at Guantánamo?
Prosecution: Applying the Fifth Amendment to Hamdan “Endangers All of Us”
The question of what rights apply is the threshold question. If Judge Allred determines that some constitutional rights do apply, he must decide which ones. Does the prohibition against the use of coerced statements apply? Does Hamdan have the right not to incriminate himself? In other words, does Miranda – or some form of Miranda – apply? As Hamdan’s defense counsel noted, the Constitution protects fundamental rights, “none more important than those in the Bill of Rights, including the Fifth Amendment,” and does not end at the border of the continental United States. “It extends here, and it extends now.” The prosecution said that this proposition “endangers all of us” and is “absurd” and “dangerous.”
And what happens if Judge Allred holds that the Constitution does not apply and the trial proceeds? If Hamdan is convicted, he will appeal, and this whole process could be called into question after its conclusion.
Even under the Military Commissions Act, the judge must determine whether statements were coerced or resulted from an unlawful failure to warn Hamdan of any right against self-incrimination. (The prosecution claims that Hamdan’s willingness to talk after he was permitted to call his wife, and his comment to an interrogator that one of his questions was “stupid,” show that he was not “a limp noodle” willing to give up anything.)
The prosecution contends that every interrogation was part of an intelligence mission and therefore not unlike interrogations occurring on the battlefield. Such statements, given the exigent circumstances in which they’re made, should not, the prosecution argues, be excluded so long as they did not result from torture and are otherwise reliable.
But even Judge Allred seemed to doubt that interrogations eight thousand miles from Afghanistan and years after Hamdan’s capture fall into the same category as ordinary battlefield interrogations. Yes, interrogators may elicit some useful intelligence, but what, the judge asked, was the primary purpose of the interrogations — intelligence gathering or evidence gathering for a criminal prosecution?
On the battlefield, there may be a gray area between an intelligence-focused mission and a criminal investigation. But once at Guantánamo, there is “a more contemplative environment,” as Hamdan’s defense counsel noted. Should the government get two bites at the apple, or should it have to prioritize, for instance, by using (lawful) interrogation tactics that are more likely to elicit intelligence but may compromise the statements’ admissibility?
Discovery Delays: Conniption Fits and Top Secret Clearance for Terrorism Suspects
Of course, even assuming Judge Allred can get to these issues on time, he may continue the trial further if some discovery issues remain unresolved, and he bluntly blamed the prosecution for the prospect of such further delay: “We’ve come to the point where the government needs to move. . . . If security concerns are overriding, I’ll continue [the trial]. . . . I’m only pushing you because you’re pushing me. You want the trial to start Monday – so get on it.”
These discovery issues should have been resolved weeks or months ago. Instead, the prosecution has:
(1) Failed to produce discovery related to Hamdan’s treatment and identify who interrogated him during a one-month period,
(2) Produced 600 pages of documents less than one week before trial is set to begin, including documents pointing to possible coercive tactics used on Hamdan, specifically “Operation Sandman,” which entails sleep deprivation,
(3) Produced further (secret) documents only this morning that supposedly explain why Operation Sandman did not result in coerced statements in Hamdan’s case and why Operation Sandman “does not impact the case whatsoever,” and
(4) Prevented even Hamdan’s military lawyer, who has the necessary special Top Secret security clearance, from questioning “high-value detainees,” including Khalid Sheikh Mohammed, who might be able to provide key exculpatory evidence in Hamdan’s case.
Judge Allred finally ordered the government to turn over documents pertaining to the missing month of Hamdan’s detention and to permit Hamdan’s military lawyer to visit the high-value detainees this weekend to assess whether they might testify. He said that allowing pretrial access is the fair thing to do, unless it will cause the government to have a “conniption fit.” But this shouldn’t be a problem, as Hamdan’s military lawyer is “cleared, read-in, and vetted.”
It is difficult to see how the defense can be ready to proceed on Monday with so little time to examine the documents the government has been ordered to produce and whether the high-value detainees are willing to testify. (In one of the more bizarre moments today, Hamdan apparently joked that he has the necessary clearance, to which Judge Allred laughingly responded, “We’ll check with security.”) Defense counsel noted today that it will be difficult to make a comprehensive and coherent opening statement if they do not know what evidence they will be permitted to present: “We just need discovery if we are going to trial.”
With two hundred years of precedent to work from, Judge Allred may not have been forced to wait until the eleventh hour to rule on key constitutional questions if Hamdan were being prosecuted in federal district court.