Constitutional Law

A Bad Week for Military Tribunal

By Sharon Kelly, Human Rights First’s Elect to End Torture '08 Campaign Manager. Kelly is in Cuba to monitor the proceedings and is reporting back on events as they unfold.

Guantánamo Bay, November 3, 2008: You may have missed it in the frenzied press coverage of the final days of the presidential election, but last week the current administration’s military commission system at Guantánamo Bay continued its slide toward collapse.  

On Tuesday, a judge at Guantánamo barred from court a confession given by Mohammed Jawad, who was arrested as a teenager by Afghan authorities who threatened his life and the lives of his family members -- threats amounting to torture, according to the judge’s ruling. A former prosecutor, Darrel Vandeveld, who recently resigned in protest over the government’s handling of Jawad’s case, said that the ruling means “it is now impossible to prosecute with any credibility." While the commissions’ head prosecutor, Col. Lawrence Morris, previously indicated that the government would rely on Mohammed Jawad’s post-capture confessions to make its case -- confessions which he claimed were made without duress -- he has yet to say whether Tuesday’s ruling will lead him to drop the charges.

On Wednesday, the military judge who heard the case of Salim Hamdan, Osama bin Laden’s driver, refused the government’s plea to “reconsider, reassemble, reinstruct and re-announce a sentence,” further cementing the jury’s sentence of Hamdan to serve an additional five months beyond the time he has already served. This light sentence was a slap in the face to the government, which has maintained that those detained at Guantánamo comprise the “worst of the worst.”

Finally, last week Ali Hamza al Bahlul, a man accused of acting as al Qaeda’s media secretary and propagandist, went on trial -- only the second trial to be conducted at Guantánamo. Even if al Bahlul is convicted and sentenced to serve a significant amount of time, his boycott of the proceedings means that we have yet to encounter an example of a robust use of the adversarial system leading to conviction and a stiff sentence – an end result greatly desired by the government to justify the existence of the commissions.

Here are some key details from the al Bahlul trial, which I spent the week observing:

• Three members of the “Lackawanna Six” -- remember them from the 2003 State of the Union address? -- testified that they had been shown al Bahlul’s video at an al Qaeda training camp in Afghanistan. The three said that the film’s call to take up arms against the United States made them realize that they were in over their heads at the camp and they subsequently returned home.

• Prosecution witnesses gave testimony about how pleasant the Camp X-Ray and Camp Delta facilities were. (Sure, in Camp X-Ray detainees were housed in cages, but it didn’t rain much and the weather was pretty much in the 80s . . .)

• The government showed two films to the jurors. First up was al Bahlul’s own film, The Destruction of the American Destroyer the U.S.S. Cole. To counter al Bahlul, the government reprised its budget film from the Hamdan case – The Al-Qaeda Plan – which, in its attempt to provide an overview of al Qaeda’s organization and aims, borrows liberally from al Bahlul’s film and features graphic images of the 9/11 attacks.

• The judge decided that the government must prove as an element of each underlying offense that al Bahlul was in fact an enemy combatant, significantly increasing the burden on the government. 

In contrast to the ongoing Guantánamo debacle, this week in federal court Chuckie Taylor, who served as the head of his father’s security services during his bloody rule of Liberia, was convicted of torture under the anti-torture statute – a law the Justice Department under President George W. Bush attempted to define out of existence with its misguided 2002 torture memo.

In short, it was a bad week for the Bush administration and its dubious legal innovations. With the presidential election soon behind us, let’s hope we can begin to chart a way out of Guantánamo.

Full post as published by ACS Blog on November 03, 2008 (boomark / email).