Hearsay, secrecy were fair game at Hamdan 'free-for-all' Jason Rhyne

Published: Wednesday December 19, 2007



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Print This Email This Amnesty observer: Bush tribunal law allows countless ways to launder evidence From a bird's eye view, the military commission hearings held earlier this month in the case of alleged al-Qaeda associate Salim Ahmed Hamdan might have been mistaken for a typical American courtroom scene: Evidence was introduced, witnesses were cross-examined, and the accused, who for five and a half years has been detained at the US military base at Guantanamo Bay, Cuba, was represented by a team of defense lawyers. But it shouldn't be mistaken for justice, say some human rights advocates who observed the hearings. The pre-trial proceedings in Hamdan's case, carried out under provisions set forth by the controversial 2006 Military Commissions Act, were held to determine whether the detainee can be designated as an unlawful military combatant -- a distinction that would allow military prosecutors to try him on charges of conspiracy and providing material support for al-Qaeda terrorists. However, the two-day hearing sessions were marked by hearsay evidence, denied witness requests and challenging time constraints, Jumana Musa, the advocacy director for domestic human rights and international justice at Amnesty International USA told RAW STORY . Taken into custody by US forces in Afghanistan in 2001, the Yemen-born Hamdan alleges that he was routinely beaten, subjected to subfreezing temperatures and threatened with death and torture by his US guards there. Later, after being transferred to Guantanamo, he says he faced eight months of maddening solitary confinement. Although Hamdan's lawyers don't deny their client once served as a driver for Osama bin Laden, the defense maintains he was little more than a hired hand for the group, and should be afforded rights under the Geneva Conventions as a prisoner of war. During his recent hearing, however, an Army major offered new testimony that would seem to implicate Hamdan more directly in al-Qaeda activities. He said he saw two surface-to-air missiles in a car -- which the major was told belonged to Hamdan -- shortly after the detainee was captured. Testimony was 'hearsay upon hearsay' But the major's testimony was not based on a first-hand account, said Musa, who was one of a handful of human rights observers who traveled to Guantanamo for the hearings. "He's reporting on what he was told when he got on the scene, and he certainly seemed like a straight shooter, he was there," Musa said, but added that his testimony wouldn't necessarily even be admissible were Hamdan being tried in conventional American court. "It's hearsay upon hearsay," she added, describing the military commission's willingness to accept hearsay evidence as "far more broad that anything you would allow into a US courtroom." A differing standard on the admissibility of evidence are just one of the ways in which the military tribunals part company with the strict legal conditions of civilian court. The attorney also raised questions about the testimonies of two federal interrogators who had questioned Hamdan. As reported by the Los Angeles Times, Robert McFadden, an agent with the Department of Defense, testified "that Hamdan confessed in May 2003 to making weapons pickups and deliveries for Bin Laden. Hamdan also said he had pledged allegiance to Bin Laden -- on condition that Al Qaeda remained focused on fighting for liberation of the Arabian peninsula and against 'Jews and crusaders,' not other Muslims..." Another official who interrogated Hamdan, FBI agent George Crouch Jr., said Hamdan told him he had driven bin Laden and his son on a "road trip" following the Sept. 11 attacks in an apparent effort to evade the Americans, according to the New York Times. "I think the issue there though is these were interrogations done without attorneys," Musa told RAW STORY . "He was told, 'if you tell us what you know, you can go home'...he talked a lot. He was told it would help him go home and now he's being tried as unlawful military combatant." Musa warns that the tribunals offer no true way of knowing if incriminating statements have been extracted from detainees through harsh interrogation techniques or torture. "The reality of the situation is, the way it was written, there's 162 ways to launder evidence," she said. "Maybe that information was obtained through waterboarding somebody, but you'll never know, because that information was classified." Revelations that the CIA destroyed at least two videotapes showing severe interrogations used on al-Qaeda detainees came to light as the Hamdan hearings were underway. In a recent piece at Salon, Hina Shamsi, an ACLU attorney who observed the hearings, also cautioned about potential loopholes in the commissions legislation. "For the first time in U.S. history, and under pressure from the Bush administration, in the Military Commissions Act, Congress explicitly authorized an American tribunal to permit evidence obtained through 'cruel, inhuman and degrading treatment' as long as it was obtained before Dec. 31, 2005," writes Shamsi. "Even though the Military Commissions Act prohibits evidence obtained through torture, it could still come in because of this cruel treatment loophole, combined with the other provisions that permit secret evidence and evidence from second- and third-hand sources." Lawyer complains Gitmo justice being 'run on a clock' The judge for the hearing, Navy Capt. Keith Allred, denied a defense request to call as witnesses so-called "high-value detainees," including alleged 9/11 mastermind Khalid Sheikh Mohammed, who Hamdan's lawyers had hoped might contradict government assertions that Hamdan was more than casually associated with the al-Qaeda organization. Prosecutors had argued that the requested high-value witnesses were only accessible to individuals with specialized clearance -- and that the two-day hearing didn't allow enough time to carry out the required clearance process. "A lot of that is put out there as protecting sources and methods," Musa told RAW STORY . "It's extremely problematic when you're seeking to keep someone from speaking to a witness, and I'm not saying there are no security concerns, but concerns have been amplified for wrong reasons." The attorney said that the finite time allowed for the hearing presented a serious challenge for the defense. "The judge seemed to be making every accommodation," she said, but added that as the end of the hearing approached, there "appeared to be more of an imperative to finish for Friday. A lot of stuff was left hanging...usually justice isn't run on a clock." The loose ends are being handled by email and phone calls, she said, and a written ruling on Hamdan's status will be issued by the judge. Although Musa had praise for the conduct of officials involved in the status hearing, she suggested that the commission structure itself was fatally flawed. "When the system itself is rigged, good staffing doesn't fix it. It's the system, it's not the actors involved." In many ways, Hamdan has become a test case for the constitutionality of the Bush administration's push for detainee tribunals. In 2004, a DC district court found the Bush-backed trials for Hamdan to be unlawful, but that decision was overturned by a three-judge panel of the DC federal appeals court, which included the future Chief Justice of the Supreme Court, John Roberts. Hamdan's case later advanced to the Supreme Court, which found tribunals in violation of the Uniform Code of Military Justice and the Geneva Conventions -- but Congress swept quickly into action, trumping the high court with its passage of the Military Commissions Act. Defenders of the trials contend that as non-US citizens, foreign detainees are not entitled to the full scope of habeas corpus rights which guarantee an individual the right to challenge their detainment in court. "Congress cannot 'suspend' habeas corpus by denying it to people who have no right to it in the first place," wrote Andrew McCarthy in a 2006 opinion piece about the Military Commissions Act published at the conservative National Review Online. After the Act's passage, President Bush had lauded the measure. "Under this program, suspected terrorists have been detained and questioned about threats against our country. Information we have learned from the program has helped save lives at home and abroad," he said. "By authorizing the creation of military commissions, the Act will also allow us to prosecute suspected terrorists for war crimes." A Pentagon spokesman did not respond to RAW STORY 's request for comment on the Hamdan hearings. The Supreme Court may be poised to a offer definitive ruling on on the matter, and heard oral arguments earlier this month about whether the Constitution allows for Congress to block detainees' access to civilian courts. But for now, critics of the legislation allowing the trials believe that Hamdan -- along with the 80 additional detainees the US plans to prosecute for their alleged terror links -- are facing long odds of receiving true justice via a military tribunal. "I think the legislation that set it up was abominable," Musa told RAW STORY . "In this system," she said, "it really is a free-for-all."



