Updates on Hamdan, Jawad, & the Army Field Manual Controversy

While the drama over the assemblage of Obama's so-called "team of rivals" continues, pressed on by the near-total collapse of the U.S. economy, important developments occurred in two important cases that have been followed by this blog and countless others over the years.

Salim Hamdan, famously Osama bin Ladin's former driver, imprisoned at Guanatanamo for seven years, and the first to be tried by Bush's infamous military commissions, is due to be released at any moment and flown home to Yemen, a full month before the end of his prison sentence. It's believed he would finish the sentence in Yemeni custody. From the McClatchy report:

The apparent decision to send Hamdan back to Yemen resolves questions about whether the United States would release him after his sentence was completed. A six-member military jury convicted Hamdan, 40, of providing material support for terror in August, but handed prosecutors a defeat by sentencing him to 66 months in prison, with credit for time served.

Smintheus at NION has a typically ascerbic take on the Bush Administration's decision re Hamdan:

He's shipping Hamdan to Yemen and letting that government take the onus of releasing him when the sentence expires. The most important thing, as with the Uighurs, is that George Bush should not have to face up to his own defeat.

Likewise, Gary Norton, over at Daily Kos, comments:

What was Hamdan's big crime? He worked as a driver for Osama bin Laden for a while. Now let's put this crime in perspective. Hitler had a driver named Erich Kempka. Unlike Kempka who was a high ranking SS officer who worked for Hitler for over a decade, Hamdan worked for a couple of years for OBL making $200 a month. Hamdan was a gofer. Kempka was in charge of Hitler's motor pool and was part of his inner circle, to the point that he was one of the men chosen to be with Hitler at the end. Kempka was not charged with anything by the Nuremberg court and, in fact, was called a defense witness in the trial of Martin Bormann.

But Bush and the Pentagon have placed hundreds of innocent prisoners into indefinite detention, submitting an untold number to torture. And now, according to a press release from Center for Constitutional Rights (CCR):

With less than 60 days left in the Bush presidency, the chief prosecutor at Guantanamo Bay, Col. Lawrence Morris, has threatened publicly to bring additional charges against detainees before the military commissions....

It is disgraceful that Col. Morris is attempting to preempt the results of the election by expanding the fiasco of the military commissions at the last minute. Any effort to expand the military commissions at this point is an attempt to further institutionalize these illegitimate tribunals and to prevent the next administration from acting quickly to put the military commissions to an end.

Write today to the Secretary of Defense, Reps. Conyers, Delahunt and Nadler, and Sens. Leahy and Durbin and call for an immediate end to any further charges before the military commissions.

Two Strikes Against Jawad's Gitmo Prosecutors

Meanwhile, last week the military commissions prosecutors in the case of Mohammed Jawad -- who was a teenager at the time of his capture in Afghanistan -- suffered what must be a fatal blow. In October, the judge in the case, Col. Stephen Henley, threw out Jawad's "confession" made to Afghan interrogators as tainted by torture. But Henley had not yet ruled on the applicability of another "confession," the one made to U.S. interrogators.

The Bush administration ardently argued for the inclusion of this "evidence," even as one of the chief prosecutors in Jawad's case resigned, citing government malfeasance.

Here's how David McFadden at AP summarized Hensley's new decision (as posted at the Washington Post website):

In Wednesday's ruling, Henley disqualified Jawad's second confession while in U.S. custody on Dec. 17 and 18, in part because the U.S. interrogator used techniques to maintain "the shock and fearful state" associated with his arrest by Afghan police, including blindfolding him and placing a hood over his head.

"The military commission concludes the effect of the death threats which produced the accused's first confession to the Afghan police had not dissipated by the second confession to the U.S.," Henley wrote. "In other words, the subsequent confession was itself the product of the preceding death threats."

Hensley's ruling came despite the fact that the Military Commissions Act, while supposedly forbidding torture evidence, allows "some statements obtained through "coercion"... at the discretion of a military judge."

A Battle Too Far? Recission of AFM's Notorious Appendix M

As the CCR plea makes clear, the machinery that is the torture state-within-a-state is unrelenting in its quest to use every means at its disposal to support the counterinsurgency and military campaigns of the United States. Hamdan's freedom, and the likely release of Jawad in the near future (or so one hopes), are momentary victories in the war against brutality and oppression, exemplified by the use of torture and inhumane abuse. There is much more to be done.

For example, the modern consensus, supported by Obama's team, and a myriad of others, including prominent human rights organizations and activists, is that all interrogations, including those of the CIA, should be held to the standards of the current Army Field Manual on interrogations. But the problem is that the AFM does allow torture and abusive treatment. As I wrote last February:

In fact, the reconstructed AFM maintained a core of coercive interrogation techniques that are central to the CIA-created KUBARK form of torture that relies on the induction of Debility, Dread and Dependency in prisoners, mainly through the use of isolation, sensory deprivation, and the inculcation of weakness and fear. The AFM keeps all three. It lies about banning sensory deprivation, but anyone who reads Appendix M of the AFM will see it all laid out for them: use of goggles and earmuffs for sensory deprivation purposes, restriction of sleep to four hours nightly max for 30 or more days, allowance of "fear up harsh," and isolation for 30 days or more. "Or more" means "as authorized."

I believe that the AFM, with its Appendix M, represents a violation of Common Article 3 of the Geneva Conventions. Human rights organizations and activists that have latched onto acceptance of the AFM, as proposed by Democrats, are in fact in danger of endorsing, albeit sometimes critically, a document that violates international law. They should pause to think about this.

New times admits of new tactics. The willingness to see the new AFM made some kind of sense when the current administration held supreme power (although I still disagreed with such an approach). But to maintain the same position now, with an incoming Democratic administration that at least on paper says it will eliminate torture, is to find oneself repositioned from the progressive to the retrograde.

Rescind Appendix M of the AFM. This must be part of any call upon Obama as he supposedly will seek to act to change torture policies in the first days of his administration.

Death of a "Dirty Bomb" Frame-up

Andy Worthington has an excellent article at AlterNet analyzing the recent decision by Bush's Justice Department to drop "dirty bomb" charges against British resident and Guantánamo prisoner Binyam Mohamed, the so-called co-conspirator with Jose Padilla to construct and detonate a "dirty bomb" on U.S. soil.

For over three years, Binyam's lawyers at Reprieve, the London-based legal action charity, have been arguing that the allegations against Binyam were extracted through the use of torture -- in Morocco, where Binyam was tortured for 18 months, after being rendered by the CIA, and at the CIA's own "Dark Prison," near Kabul, where he was held for four or five months from January 2004, before his transfer to the U.S. military prison at Bagram airbase, and his eventual arrival at Guantánamo in September 2004.

U.S. authorities got Binyam to "confess" under torture that he had met with Khalid Sheikh Mohammed, Abu Zubaydah, Sheikh al-Libi, Ramzi bin al-Shibh and Jose Padilla to discuss the "dirty bomb" plot. Except guess what? Abu Zubaydah and al-Libi were already in U.S. custody on the date of Binyam's "confessed" plot. The U.S. knew this, too, and continued to torture and prosecute Binyam. And now that the Justice Department has dropped its charges, the Department of Defense, which is conducting the notoriously unjust military tribunals at Guantanamo says it's still "reviewing" Binyam's case.

Mohamad was one of five Guantanamo detainees who had charges dropped against them. (They are not free, however, and the U.S. says there are other charges and further investigation and review to be undertaken.) In Binyam's case, it's widely suspected dropping certain charges were meant to forestall the release of documents proving torture and other mistreatment, and British High Court judges have been highly critical of U.S. conduct in the case. "Torturers do not readily hand over evidence of their conduct," the judges are quoted as saying.

The military tribunals are so unfair that one of its chief prosecutors, Lt. Col. Darrel J. Vandeveld, quit over the handling of evidence in the Mohammed Jawad case, and went public with his criticisms of the frame-up trials. He was the fourth prosecutor to resign from Bush's military kangaroo courts. A Los Angeles Times article on Vandeveld described the former prosecutor's actions:

Vandeveld's claims are particularly explosive.

In a declaration and subsequent testimony, he said the U.S. government was not providing defense lawyers with the evidence it had against their clients, including exculpatory information -- material considered helpful to the defense.

Saying that the accused enemy combatants were more likely to be wrongly convicted without that evidence, Vandeveld testified that he went from being a "true believer to someone who felt truly deceived" by the tribunals. The system in place at the U.S. military facility in Cuba, he wrote in his declaration, was so dysfunctional that it deprived "the accused of basic due process and subject[ed] the well-intentioned prosecutor to claims of ethical misconduct."

Vandeveld is a hero for trying to expose what he called "the creeping rot of the commissions." The reaction from his military colleagues? While some have been supported, there was also "outrage and condemnation," and now this Army Reserve officer fears for his safety and that of his family.

But then this is the final act of a brazen coven of war criminals. George W. Bush announced the other day that he was not going to close Guantanamo -- in fact, he had never even considered it. Meanwhile, his Defense Department made it clear that if it was up to them, no one would ever be released from that facility. The U.S. government is trying to undo the sentence of Salim Hamdan, whose years at Guantanamo were to be counted in his final five year sentence, administered as part by one of the Pentagon's military commissions. While Hamdan should be freed in December, the government is appealing, hoping to keep Hamdan in prison at least another five years, and maybe forever.

“The length of the sentence is a matter of indifference to us,” Morris said. He said that if the jury still wants Hamdan released on Dec. 31, it could resentence him to however many days remained until then.

Marcion has covered the recent events in some depth over at Daily Kos, and his article there is worth reading. His summary makes some essential points:

And for anybody who thinks that the Guantanamo horror stories are the exception, and that after the detention center is closed under the next administration, or after these terror show trials end, that all will be back to normal, I have to say - this is normal. These publicized cases are merely shedding light on an inherently unfair and fixed system. Just as the Trotsky/Bukharin show trials revealed the truth about the entirety of the fixed Soviet justice system, these show trials reveal the same truth about the American system. Our prisons are filled with people whose only crime was attracting the attention of some cop cruising for an arrest. Once somebody is arrested, the prosecutors go to work trying to fix the case so as to get the maximum sentence possible, and the cops cooperate with providing the evidence or testimony that the prosecutor will need to get the conviction, by torturing their prisoner within the bounds of the law (i.e. no permanent bruising). The majority of jurors, being good Americans, are also convinced that justice equals longest sentence possible, and that cops never lie, but defendants always do. Any jurors that show any hesitation or moral qualms are kicked during voir dire. A prosecutor or cop who shows some qualms about pulling out all the stops sees their career come to a grinding halt quickly, while the guys who get convictions get promoted and eventually become judges.

The "justice" of Guantanamo has already come to America, along with the torture and the indefinite detention and obliteration of civil rights. As a follow-up, the reader could go read my recent posting, Battle Over Habeas -- Torture Inc. Comes to America.

(Updated) Torture Trial Ends: Reflections on the Hamdan Verdict

Osama bin Laden's personal driver and bodyguard, who made the magisterial sum of $200 per month, 34-year-old Salim Ahmed Hamdan, who was held years without charges at Guantanamo Naval Base prison, has just been found guilty of lesser charges in the first of a series of planned "military commission" trials by the Bush Administration. Comprehensive news coverage of the Hamdan trial can be found at the Miami Herald.

Hamdan was found not guilty on two counts of conspiracy to foment terrorism in league with Al Qaeda. He was found guilty on five of eight charges of providing material support to terrorists. He has yet to be sentenced, and faces possible life imprisonment. In any case, the Bush Administration has already said that whatever the verdict or sentence, no "enemy combatant" will be released until the "war on terror" is over, i.e., until hell freezes over.

Hamdan's prosecution has been a key judicial and political football, ever since attorneys for Mr. Hamdan pressed his rights to challenge his detention in the courts. The struggle for his habeas rights went up to the Supreme Court, where the court, in Hamdan v. Rumsfeld, upheld the rights of prisoners facing Bush's jerry-rigged military commissions. The ruling meant Bush and the Pentagon had to go back to the drawing board to redo the commissions concept, which in the end meant years more of imprisonment for the detainees and a revamped military commission policy that didn't look all that different from the old one.

While the months and years unfolded, military prosecutors quit, and other military lawyers protested, culminating in the resignation last October of Colonel Morris Davis, the former prosecutor for the commissions, citing political bias and interference in the trials, and castigating the process for allowing the introduction of "evidence" produced by torture.

[Additional note: A commenter on the posting of this story over at Daily Kos notes that that "hearsay evidence is also admissible in these kangaroo courts, as well as coerced testimony and secret evidence." H/T Smintheus]

Torture and the Hamdan Trial

Hamdan is reported to have been subjected during the course of his incarceration to beatings, sleep deprivation, isolation, and sexual humiliation. The impact of this upon the substance of the "trial" -- the first such military commission trial since World War II -- became clear when Army psychologist Colonel L. Morgan Banks III was called to testify in secret session.

If the name seems familiar to my readers, it's because L. Morgan Banks was a member of the American Psychological Association's 2006 PENS task force on psychological ethics and national security. Banks was also Chief Psychologist of the Army's Survival, Evasion, Resistance, Escape (SERE) program, coming to Guantanamo to teach interrogation techniques in early 2003. We now know what kinds of techniques were being taught, e.g. "degradation tactics," "physical debilitation tactics," sensory deprivation, and demonstrating to the prisoner "complete control over victim's fate."

Demonstrating omnipotence and total control, by the way, is why the military, CIA and Bush are so insistent in denying detainee rights, especially habeas corpus. As Jane Mayer reports in her new book, The Dark Side, administration stalwarts Dick Cheney and David Addington were incensed by 2004 Supreme Court rulings granting "enemy combatants" due process rights, such as having an attorney, or challenging their detention in court, convinced by "CIA arguments that any outside contact might jeopardize the psychological control necessary to interrogate terror suspects" (p. 302, emphasis added).

We can only guess at what Banks testimony was. One assumes it had to do with the coercive interrogation and abusive conditions of detention suffered by Mr. Hamdan. The blanked out pages of Banks' testimony are a stark testimony to the failure of justice, and the contemporary practice of the U.S. government to allow testimony induced by torture, a practice that sets back American jurisprudence more than 300 years.

Responding to the Verdict

From today's Miami Herald story, as covered by Carol Rosenberg:

Salim Hamdan, 37, stood and listened with head bowed to an Arabic translation as he became the first man convicted at trial in the first U.S. war crimes tribunal since World War II.

He said nothing but wiped his eyes with his head scarf [An AP story says Hamdan openly wept at the verdict.]....

In finding Hamdan not guilty of two counts of conspiracy, the jury did not entirely accept the Pentagon's theory that the father of two with a fourth-grade education was a key cog responsible for al Qaeda mayhem culminating with the 9/11 terror attacks....

Defense lawyers derided the war court, called a military commission, as relying on federal agents' interrogations conducted from Afghanistan to Guantánamo without notifying Hamdan that he might be prosecuted and without benefit of a lawyer even in his second year here.

"In no other court in this country would the evidence be admissible," said retired Navy Lt. Cmdr. Charlie Swift, who called the trial "by no means transparent."

The Center for Constitutional Rights released a statement by Shayana Kadidal, Senior Managing Attorney at CCR, upon the release of the verdict:

Hamdan’s trial violated two of the most fundamental criminal justice principles accepted by all developed nations: the prohibition on the use of coerced evidence and the prohibition on retroactive criminal laws.

The trial will not create finality – the decision to keep these cases out of the ordinary criminal courts will produce years of appeals over novel legal issues raised by the untested military commissions system. Even after those appeals are finished, the process will never be seen as legitimate by the world. This case was the first trial run of the commissions system, and the decision proves nothing except that the system itself should be scrapped. Terrorism-related crimes should be tried in the time-tested domestic criminal justice system, a system whose rules have been designed over the centuries with one goal: to seek out the truth.”

ACLU Executive Director Anthony Romero has declared the verdict a travesty:

Any verdict resulting from such a flawed system is a betrayal of American values. The rules for the Guantánamo military commissions are so flawed that justice could never be served. From start to finish, this has been a monumental debacle of American justice. The judgment against Hamdan undoubtedly will be challenged in legitimate courts, but there is no appeal from the judgment of future generations. This system was devised to permit the prosecution of alleged wrongdoing by detainees, while continuing to cover up the wrongdoing by government interrogators. Trials that are shrouded in secrecy and tainted by coercion are the very antithesis of American justice.

The Bush White House, of course, sees things differently:

"We're pleased that Salim Hamdan received a fair trial," Deputy spokesman Tony Fratto said in a statement....

"The Military Commission system is a fair and appropriate legal process for prosecuting detainees alleged to have committed crimes against the United States or our interests," Fratto said. "We look forward to other cases moving forward to trial."

Reaction and the "War on Terror"

Typical reactions I have heard to the Hamdan case, as to the situation of the Guantanamo and other "enemy combatant" prisoners in general, include icy statements decrying pity, reminding us of the thousands killed on 9/11, or the U.S. soldiers killed in Iraq and Afghanistan. Others are less engorged with vengeance. Some feel more secure: a message has been sent to the "terrorists," where "terrorist" is a label for something vaguely evil they can't understand, a murky group of persecutors that simply want to destroy "our" way of life.

The vast majority, I think, simply care not to look as the very principles upon which our society is built are trampled into the ground by lordly politicians who play upon fear, and feed their own pockets with the profits of war. Perhaps it is too painful to observe such injustice, yet feel so impotent, so small against the great power of the state. But behind these societal principles are real people, many of them innocent of any charge. (Even as early as 2002, a secret CIA report concluded that as many of 1/3 of the detainees at Guantanamo were innocent.)

There's a myriad of other reactions: We must not get off topic. We have to elect Democrats. There's nothing I can do.

The spirit of the nation has already been shattered. More kangaroo military commissions trials are planned. And the government is only whetting its appetite for anti-democratic rule, outside the limits of justice and due process, honing its machinery of tyranny.

Make no mistake about it: the Hamdan verdict was a victory for the Bush Administration, and for those who would terminate whatever vestiges of moral and just government remain. I know that there are those who would oppose such a demolition of democratic society, many of them within the halls of government, perhaps even within the Pentagon and CIA itself. They will fight. But will they win?

Without public opinion strongly activated against them, the militarists and torturers will win. It's become a cliche, but Martin Niemöller's invocation against inaction in the face of tyranny has also become an omen, a warning with resonant overtones:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

UPDATE (3:25pm, PDT):

The following is a statement by Democratic presidential candidate Barack Obama on the Military Commission ’s guilty verdict in the Salim Hamdan case.

“I commend the military officers who presided over this trial and served on the hearing panel under difficult and unprecedented circumstances. They and all our Armed Forces continue to serve this country with valor in the fight against terrorism. That the Hamdan trial — the first military commission trial with a guilty verdict since 9/11 — took several years of legal challenges to secure a conviction for material support for terrorism underscores the dangerous flaws in the Administration’s legal framework. It’s time to better protect the American people and our values by bringing swift and sure justice to terrorists through our courts and our Uniform Code of Military Justice. And while it is important to convict anyone who provides material support for terrorism, it is long past time to capture or kill Usama bin Laden and the terrorists who murdered nearly 3000 Americans.”

The critique is mushy and oblique. It covers the fact that this tribunal verdict was completely tainted by the "dangerous flaws", and cannot be taken seriously. To serve on such a kangaroo court is not to "serve this country with valor", as the resignation of the Gitmo chief prosecutor last year made clear.

Meanwhile, here's McCain's slavish ode to Bush (in)justice:

The following is a statement by Republican presidential candidate John McCain on the Military Commission’s verdict:

“I welcome today’s guilty verdict in the first trial held under the Military Commissions Act (MCA). This process of bringing terrorists to justice has been too long delayed, but I’m encouraged that it is finally moving forward. I supported that legislation, which was a good-faith effort by Congress to meet the Supreme Court’s direction to establish a process to bring terrorist detainees to trial. Salim Ahmed Hamdan, a trusted confidante of Usama Bin Laden, was provided a full hearing of the charges against him and was represented by counsel who vigorously defended him. The jury found that the prosecution lawyers had proven, beyond a reasonable doubt, that Hamdan had aided terrorists by supplying weapons to Al Qaeda and Taliban forces in Afghanistan. This process demonstrated that military commissions can effectively bring very dangerous terrorists to justice. The fact that the jury did not find Hamdan guilty of all of the charges brought against him demonstrates that the jury weighed the evidence carefully. Unlike Senator Obama who voted against the MCA and favors giving Al Qaeda terrorists direct access to U.S. civilian courts to contest their detention, I recognize that we cannot treat dangerous terrorists captured on the battlefield as we would common criminals.”

For all his puppet-like support to an inhumane and unjust process, McCain makes the point that Congress (with support of Democrats, btw, though McCain doesn't mention this) helped bring about this unconstitutional parody of jurisprudence.

Link

UPDATE II (9:25pm, PDT):

Scott Horton opines over at Newsweek:

"I would be very surprised if any of this conviction stands at the end of the day," says Scott Horton, a law professor specializing in human rights at Columbia University. "He was convicted of things that are not war crimes by a tribunal that has the power only to prosecute war crimes."

Marty Lederman makes similar but more nuanced point in a lengthy article, What Are the "War Crimes" For Which Hamdan Was Convicted?

UPDATE III (Sunday, 8/10, 12:15pm, PDT):

In a postscript to the Hamdan decision, the military jury, in what some in the mainstream press are calling a rebuke to the administration, sentenced Hamdan to 5-1/2 years. Since the ex-Al Qaeda driver has been in prison for over five years anyway, the effective sentence is only five months. The U.S. prosecutors had been asking the court to put Hamdan away for 30 years.

Some find in this relatively lighter sentence a repudiation by some in the military of Bush's military tribunal system. I tend to agree with an opinion piece yesterday in the New York Times, where William Glaberson wrote:

The verdict and the five-and-a-half-year sentence may not have been as severe as the government had hoped for, but it was a green light for a tribunal that the Pentagon plans to use to prosecute as many as 80 detainees, including five men charged as the plotters and coordinators of the Sept. 11 attack.

And that green light will stay on as long as the public impression is that the question of fairness in these star chamber "trials" -- with their secret testimony, their reliance on coerced testimony, their bogus insistence on "war crimes" that are not recognized by such by any other judicial institution, especially the use of "retroactive" laws -- is still a matter of sincere public debate. And that's precisely what the Times editorialist does, as Glaberson continues:

Nonetheless, the central question about the war crimes system remains unanswered after its first trial: Is it fair enough and open enough to meet Americans’ concept of justice?

The Hamdan verdict was not just, as the man should have never been held for years the way he was, subjected to torture, and tried for retrospectively implemented "laws". His sentence is as much a travesty as the tribunal itself. We will never know how Hamdan may have been judged and/or sentenced in a normal criminal court. Now, the Pentagon and the Bush Administration ponders what to do five months down the line with an "enemy combatant" who has served his term, even by Bush justice. Meanwhile, the wheels of judicial progress runs backward, as does the train of time itself, as the achievements of enlightenment democracy, justice, and penology unravel in the ambition to achieve American preeminence all over the world.

Hamdan Redux: Government Asks Judge to Reconsider Decision

Marty Lederman has an fascinating analysis over at Balkinization regarding the the government's appeal in the recent Hamdan and Khadr cases. The latter concerned the decision by U.S. military judges to dismiss charges against Salim Ahmed Hamdan of Yemen and Omar Khadr of Canada. They were charged as terrorists and labelled "unlawful enemy combatants", and were to be among the first cases to be brought before Bush's kangaroo military commissions. According to AP:

Hamdan's military judge, Navy Capt. Keith Allred, said the detainee is "not subject to this commission" under legislation passed by Congress and signed by President Bush last year.

Now the government is appealing Capt. Allred's decision, and Marty Lederman has read the motion on Hamdan and finds:

The oddest thing about the Hamdan motion, however, is that the government never really gives a persuasive factual account of why Hamdan is an enemy combatant, let alone an "unlawful enemy combatant" as that term is defined in the MCA....

More to the point, as I read it, those alleged facts simply do not establish, as the MCA requires, that Hamdan "purposefuly and materially supported hostilities against the United States."

Go read the entire piece. If you're ambitious you can read the motion on Hamdan, and also the motion on Khadr. (Lederman did not make an analysis of the latter, having not read it yet. But one suspects that much the same non-evidence will be presented there.)