"Tales I Win, Heads You Lose": Inside the Twisted World of Gitmo's Military Commissions

Guantanamo Bay, Cuba -- Tuesday's military commission hearing began with additional testimony and evidence regarding the defense's contention that the commission system is marred by improper political influence. The defense, citing former chief prosecutor Morris Davis's testimony, maintained that Salim Ahmed Hamdan could "not be prosecuted in a system where politicians hold the final say on who will be charged and what the outcome will be." The prosecution -- while insisting that it was "not the government's position that Colonel Davis is an untruthful person" (call that the watch-your-back double negative) -- suggested that Davis was pursuing a personal agenda and that the commission system was fair and independent.

Throughout, Hamdan appeared to listen intently, but the lawyers' arguments about "command influence" -- and others that followed concerning the admissibility of statements obtained by military investigators during Hamdan's years in custody -- must have seemed attenuated from his immediate experience. In the afternoon, he appeared once again wearing his prison garb -- an omen that he intended something other than quiet observation. As proceedings resumed, Hamdan addressed the court:

"Your Honor -- this is Hamdan -- I am speaking to you."

What followed was a riveting exchange between Judge Keith Allred and Hamdan -- an exchange that revealed the enormous distance between the judge's good-faith and compassionate efforts to provide a fair trial in a flawed system, and Hamdan's increasing frustration with a legal system whose rules seem to change with each of his victories. For compelling accounts of that exchange, see here and here. Rather than repeat them, I want to focus on one of the judge's comments.

Hamdan had once again stated that he intended to leave the court and to instruct his attorneys not to proceed in his absence. The judge pleaded with Hamdan to reconsider:

"Mr. Hamdan, I think you should have great faith in American law, because you have already been to the Supreme Court. The Supreme Court said to the President of the United States, 'You cannot do that to Mr. Hamdan.' Your name is printed in our law books. You won against the United States."

The judge was correct, of course -- it is indeed extraordinary that our system allows an imprisoned Yemeni with a fourth-grade education to take on the president and Secretary of Defense and prevail. But, Hamdan wanted to know, to what end? Years later, he was back at square one. "We went to the Supreme Court and the Court made a decision. Then the government went to Congress and they changed the law. Why? Just for my case?" Hamdan had earlier made the same point more colorfully: "If you ask me what is the color of this paper, I say white. You say black. I say white. You say black. I say, okay, it's black -- and you say white. This is the American government."

Judge Allred patiently and sincerely attempted to persuade Hamdan that he was better off participating in his trial. His attorneys had already won victories, and might win more, the judge reminded him; the prosecution was likely to win some victories as well. That was the system. Hamdan, smiling, replied: "If both sides could win, I would be very happy with that. We could be friends forever."

Both sides cannot win, of course. But this week's proceedings have demonstrated once again that in the military commission system, both sides surely can lose. Hamdan loses no matter the outcome: in the "tales I win, heads you lose" world of Guantánamo detention, even an unlikely acquittal at trial would not lead to release, but to continued indefinite confinement as an "unlawful enemy combatant." And the United States loses by squandering a historic opportunity to demonstrate to the world that it can provide impartial justice instead of pressing forward in a fatally flawed system that permits conviction by hearsay statements extracted through techniques long considered torture by civilized nations.