Why Won't the Bush Administration Release the Uighur Prisoners at Gitmo?

By Daphne Eviatar, Washington Independent. Posted December 3, 2008.

Ali Hamza al Bahlul, allegedly Osama bin Laden's media specialist, boycotted his trial, refusing to put on a defense. He was sentenced to life in prison.

And Salim Hamdan, Osama bin Laden's driver, originally portrayed as a militant Al-Qaeda warrior who conspired to arm his fellow terrorists around the world, was convicted only of assisting terrorism. He was sentenced to just a few months more than time already served. (The government had pressed for 30 years in prison.) Last week, he was returned to Yemen for the last months of his sentence.

Meantime, the "convening authority" of the military commissions -- the official who decides which cases to refer for trial -- has dismissed cases against at least five detainees without explanation. And the authority's former legal adviser, Brig. Gen. Thomas Hartmann, had to be excluded from participating in several cases because he tried to exercise undue influence over the prosecution. At least four prosecutors have resigned in protest of the commissions.

Then there's the case of Mohammed Jawad, a 16-year-old Afghan arrested five years ago for allegedly throwing a hand grenade into a vehicle carrying two U.S. Army officers and their interpreter. The judge recently excluded his confession to the crime, however, because it was extracted through torture.

"What you're seeing in the military-commissions context is that although the administration got Congress to create a system rigged against defendants, the military lawyers involved in these cases refused to allow themselves to be used in this fashion," said Remes. "The whole system is in disarray. The administration counted on the panic and alarm in the immediate aftermath of 9/11 to carry them through. But, in time, a sense of proportion and justice returned."

The administration isn't giving up, though. In the Jawad case, for example, it has appealed the judge's suppression order.

"Right now, the government is engaging in extraordinary tactics to fight that case, including a lot of shifting of decision on exactly what the crime is, and most recently filing an appeal with the court of military commissions review," said Morris of Duke Law School.

Some of those actions are likely to be futile, however. Obama has pledged that his administration will disband the military commissions when he takes over Jan. 20. Lawyers practicing before the military commissions could still be struggling with pre-trial motions then.

Still, the Bush administration seems eager to shield itself from blame for any bad outcomes later on.

"I think the Defense Dept. in particular is rudderless," said Vijay Padmanabhan, the former chief counsel at the State Dept. for detainee litigation, who is now a visiting professor at Benjamin N. Cardozo School of Law. "It has never thought, 'What happens if we lose many of these court cases? What are the long-term strategic consequences?' It just keeps fighting them. And then, if they're [the detainees are] released and something bad happens, it can blame the court."

See more stories tagged with: habeas corpus, supreme court, afghanistan, war on terror, guantanamo, fisa, david hicks, enemy combatants, military commissions, ali saleh kahlah al-marri, uighurs, mohammed jawad

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