Betrayals, Backsliding and Boycotts: The Continuing Collapse of Guantánamo's Military Commissions

Anyone who has kept half an eye on the proceedings at the Military Commissions in Guantánamo -- the unique system of trials for "terror suspects" that was conceived in the wake of the 9/11 attacks by Vice President Dick Cheney and his close advisers -- will be aware that their progress has been faltering at best. After six and a half years, in which they have been ruled illegal by the Supreme Court, derailed by their own military judges, relentlessly savaged by their own military defense lawyers, and condemned as politically motivated by their own former chief prosecutor, they have only secured one contentious result: a plea bargain negotiated by the Australian David Hicks, who admitted to providing "material support for terrorism," and dropped his well-chronicled claims of torture and abuse by US forces, in order to secure his return to Australia to serve out the remainder of a meager nine-month sentence last March.

In the last few weeks, however, Cheney's dream has been souring at an even more alarming rate than usual. Following boycotts of pre-trial hearings in March and April by three prisoners -- Mohamed Jawad, Ahmed al-Darbi and Ibrahim al-Qosi -- the latest appearance by Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, spread the words "boycott" and "Guantánamo" around the world.

Hamdan is no ordinary Guantánamo prisoner. It was his case, Hamdan v. Rumsfeld, that shut down the Military Commissions' first incarnation in June 2006, when the Supreme Court ruled that they were illegal, a decision that forced the administration to press new legislation -- the Military Commissions Act -- through a sleeping Congress later that year.

But Hamdan's fame meant little to him on April 29, when he too decided to boycott his trial, telling Navy Capt. Keith Allred, the judge in his last pre-trial hearing before his trial is scheduled to begin, "The law is clear. The Constitution is clear. International law is clear. Why don't we follow the law? Where is the justice?"

For his part, Capt. Allred did not give up without attempting to persuade Hamdan that he should believe in the legal process before which he found himself. "You should have great faith in the law," he said. "You won. Your name is all over the law books." This was true, but it was little consolation for Hamdan, who was charged again as soon as the Commissions were revived in Congress. Nor could Capt. Allred's addendum -- "You even won the very first time you came before me" -- sway him, even though that too was true.

Last June, when Hamdan appeared before Capt. Allred for the first time, in the first pre-trial hearing for his new Military Commission, Allred dismissed the case, pointing out that the Military Commissions Act, which had revived the Commissions, applied only to "unlawful enemy combatants," whereas Hamdan, and every other prisoner in Guantánamo for that matter, had only been determined to be "enemy combatants" in the tribunals -- the Combatant Status Review Tribunals -- that had made them eligible for trial by Military Commission.

It was small wonder that Hamdan was despondent, however. Two months later, an appeals court reversed Allred's decision, and Hamdan -- twice a victor -- was charged once more, and removed from a privileged position in Guantánamo's Camp IV -- reserved for a few dozen compliant prisoners who live communally -- to Camp VI, where, like the majority of the prisoners, he has spent most of his time in conditions that amount to solitary confinement, and where, as his lawyers pointed out in February, his mental health has deteriorated significantly.

As he prepared to boycott proceedings, Hamdan had a few last questions for Capt. Allred. He asked the judge why the government had changed the law -- "Is it just for my case?" -- and responded to Allred's insistence that he would do everything he could to give him a fair trial by asking, "By what law will you try me?" When Allred replied that he would be tried under the terms of the Military Commissions Act, Hamdan gave up. "But the government changed the law to its advantage," he said. "I am not being tried by the American law."

Col. Morris Davis condemns the Commissions (again)

Hamdan's eloquent and restrained explanation for his boycott was the most poignant event in his hearing, but it was not the most explosive. That accolade was reserved for Col. Morris Davis, the former chief prosecutor for the Commissions, who resigned noisily last October, citing political interference in the process. Once the Commissions' stoutest supporter -- in 2006 he told reporters, "Remember if you dragged Dracula out into the sunlight he melted? Well, that's kind of the way it is trying to drag a detainee into the courtroom" -- Col. Davis explained his Damascene conversion in an op-ed for the Los Angeles Times in December.

Laying into his chain of command, Col. Davis lambasted his immediate boss, Brig. Gen. Thomas Hartmann, who had recently been appointed as the legal adviser to the Commissions' "convening authority" Susan Crawford, for politicizing the process, attempting to hold higher profile trials behind closed doors (whereas Davis insisted that transparency was "critical"). He also criticized Crawford, a retired judge, who had served as Army counsel and defense department inspector under Dick Cheney in the first Bush administration in the 1980s, for overstepping her administrative role by "intermingling convening authority and prosecutor roles" and "perpetuat[ing] the perception of a rigged process stacked against the accused."

Col. Davis also delivered a particularly stern rebuke to Crawford's overall boss, the Department of Defense's chief counsel William J. Haynes II, pointing out Haynes' role in "authorizing the use of the aggressive interrogation techniques some call torture," declaring, "I had instructed the prosecutors in September 2005 that we would not offer any evidence derived by waterboarding, one of the aggressive interrogation techniques the administration has sanctioned," and declaring, unambiguously, that he resigned "a few hours after" being informed that he had been placed in a chain of command under Haynes.

On April 28, Col. Davis testified for Hamdan and reprised his complaints, telling Capt. Allred, as the Washington Post described it, that senior Pentagon officials, including deputy defense secretary Gordon England, had "made it clear to him that charging some of the highest-profile detainees before elections this year could have 'strategic political value.'" After pointing out that he had wanted to wait until both the cases and the entire Military Commissions system had "a more solid legal footing," he reiterated his complaints against Haynes, telling Navy Lt. Cmdr. Brian Mizer, Hamdan's military defense lawyer, what he had told The Nation in February: that, during a discussion of the Nuremberg Trials, in which Davis had noted that there had been some acquittals, which had "lent great credibility to the proceedings," Haynes had told him, "We can't have acquittals. We've been holding these guys for years. How can we explain acquittals? We have to have convictions."

Col. Davis also defended his uncompromising opposition to the use of evidence obtained through torture, once more directing particular criticism at Brig. Gen. Hartmann. "To allow or direct a prosecutor to come into the courtroom and offer evidence they felt was torture, it puts a prosecutor in an ethical bind," he said, adding that, in response to his complaints, Hartmann had replied that "everything was fair game -- let the judge sort it out." He added that Hartmann "took 'micromanagement' of the prosecution effort to a new level and treated prosecutors with 'cruelty and maltreatment,'" and explained that he "was trying to take over the prosecutor's role, compromising the independence of the Office of Military Commissions, which decides which cases to bring and what evidence to use."

Ali Hamza al-Bahlul and Omar Khadr

A week later, on May 7, the boycott bandwagon rolled on when Ali Hamza al-Bahlul, another Yemeni, also refused to cooperate. Sitting alone in Camp Justice, Guantánamo's new courtroom, having spurned the assistance of his government-appointed attorney, al-Bahlul, who is accused of producing videos for al-Qaeda, and who famously boycotted his pre-Hamdan Commission hearings in 2006, essentially picked up where he left off over two years ago, proudly proclaiming his association with Osama bin Laden, and telling his judge, Army Col. Peter Brownback, "We will continue our jihad and nothing's going to stop us. You must not oppress the people in the land. Your oppression against us and your support to the strategic ally in the region is what made me leave my house and today, I'm telling you, and you're a man of law, if you sentence me to life … me and the others will be the reason for the continuation of the war against America." He added that he did not intend to dispute any of the prosecution's allegations. "I am responsible for my own actions in this world and the afterworld," he said. "I don't consider it to be a crime."

While al-Bahlul's words -- delivered to full advantage from his sudden perch in the media spotlight -- served only to underline, incongruously, the utter silence in which around 200 other Guantánamo prisoners are held (those considered less dangerous, or not dangerous at all, whom the administration has no intention of ever prosecuting), his words were almost immediately overshadowed when, the day after, Col. Brownback, who was on the verge of securing a dubious place in the history books by ruling that the trial of Omar Khadr -- the only prisoner to date who has not boycotted his hearings -- would go ahead in June, threatened his own boycott.

Furious that, despite repeated requests, the prosecution (led by Maj. Jeffrey Groharing) had failed to provide Khadr's lawyers with their client's Detainee Information Management System records, to analyze his treatment in an attempt to uncover reasons why incriminating statements -- possibly obtained through torture -- should be suppressed, Col. Brownback declared, "I have been badgered, beaten and bruised by Maj. Groharing since the 7th of November to set a trial date. To get a trial date, I need to get discovery done." He then ordered the government to provide the records by May 22, or, he said, he would suspend the proceedings entirely

While Khadr's lawyer, Lt. Cmdr. William Kuebler, expressed skepticism about Col. Brownback's exclamation, telling reporters, "What we've seen in this process is that military judges will give the defense pyrrhic victories when it doesn't threaten the foundations of the system," Brownback's intervention at the very least delayed confirmation of his own notoriety. If he decides, after May 22, to proceed with the trial of Khadr, who was just 15 years old when he was captured after a gun battle in Afghanistan that left one US soldier dead, he will be the first judge since the Second World War to proceed with a war crimes trial against a prisoner who was just a child when he was captured.

Judge bars Commissions' legal adviser

The day after Col. Brownback's shake-up of the prosecutors in Omar Khadr's case, Capt. Allred, having mulled over Morris Davis' complaints against Brig. Gen. Hartmann, surprised everyone, and threatened the Commissions' teetering legitimacy once more, by disqualifying Hartmann from playing any role in Salim Hamdan's trial. Clearly swayed by Davis' testimony, Capt. Allred ruled on May 9 that he was "too closely allied with the prosecution," as the New York Times described it, "National attention focused on this dispute has seriously called into question the legal adviser's ability to continue to perform his duties in a neutral and objective manner," Allred wrote, explaining that public concern about the fairness of the cases was "deeply disturbing," and that he did not find that Hartmann "retains the required independence from the prosecution."

The Times followed up with more excerpts from Capt. Allred's decision, which confirmed his support for Morris Davis' views. "Telling the chief prosecutor (and other prosecutors)," he wrote, "that certain types of cases would be tried and that others would not be tried, because of political factors such as whether they would capture the imagination of the American people, be sexy, or involve blood on the hands of the accused, suggests that factors other than those pertaining to the merits of the case were at play."

Capt. Allred also referred explicitly to Morris Davis' statement that Brig. Gen. Hartmann had put pressure on him to use evidence obtained through torture. Noting, as the Times put it, that "prosecutors have an ethical obligation to present only evidence they consider reliable," Capt. Allred wrote that directing the use of "evidence that the chief prosecutor considered tainted and unreliable, or perhaps obtained as a result of torture or coercion, was clearly an effort to influence the professional judgment of the chief prosecutor."

9/11 charges confirmed, but Mohammed al-Qahtani dropped

While the administration tried to make light of Capt. Allred's ruling, arguing that it applied only to Hamdan's case, and that Brig. Gen. Hartmann's position was secure, it was difficult not to whiff a stench of desperation in the Pentagon's announcement, just three days later, that a date had been set for the first pre-trial hearing of another group of prisoners -- the alleged 9/11 conspirators, including Khalid Sheikh Mohammed, who confessed in his tribunal last year that he was "responsible for the 9/11 operation, from A to Z" -- against whom charges had been announced in February.

Although it's almost certain that this decision -- though perhaps rushed forward -- had already been making its tortuous way through the necessary bureaucratic processes, its propaganda value was immediately undermined when it became apparent that, of the six men initially charged, one -- Mohammed al-Qahtani -- was missing from the final charge sheet.

As Time explained, the charges against al-Qahtani were dropped by Susan Crawford "without formal explanation," and Brig. Gen Hartmann's offering -- that the dismissal provided evidence of the "strength of the system and the careful, deliberative and fair legal process in place at Guantánamo" -- was hardly sufficient to paper over the cracks. Although the charges were dismissed without prejudice, meaning that they could be reinstated in the future, nobody expects that this will happen.

The problem, as immediately became apparent, is that al-Qahtani, unlike the other five men, who were held for many years in secret prisons run by the CIA, was subjected to torture in Guantánamo, under a program devised specifically for him and approved by Donald Rumsfeld in late 2002. The details of his ordeal are well known, as Time published his leaked interrogation log in 2006, and even a military investigation in 2005, which stopped short of describing his treatment as torture, concluded that he had been subjected to abuse.

In the world of the Military Commissions, al-Qahtani's case was damaging for two specific reasons: firstly, because, although the other five men were tortured in CIA custody -- and the CIA has publicly acknowledged that KSM was subjected to the torture technique known as waterboarding (a horrendous form of controlled drowning) -- he and the others have been reinterrogated by "clean teams" of FBI agents, who have solicited confessions without resorting to torture, whereas al-Qahtani, according to his lawyers, has not.

Leaving aside for a moment the implausibility of somehow "purifying" confessions obtained through torture by using "clean teams" -- and what it reveals, unintentionally, about the "dirty teams" whose activities are purportedly being airbrushed from history -- the second reason for dropping charges against al-Qahtani only reinforces the legal netherworld in which the Commissions operate. According to their rules, the records of al-Qahtani's interrogations, which took place in Guantánamo, could be produced as evidence of torture, whereas those of the "high-value detainees," interrogated by CIA teams in secret overseas prisons, can be overlooked, because, as Time put it, "Military courts overseeing Guantánamo have indicated they cannot compel evidence from US intelligence agencies."

In reality, of course, it's inconceivable that the trials of tortured prisoners -- even those who apparently masterminded the 9/11 attacks -- can actually proceed without torture being mentioned, but for now, at least, the administration is clinging to its "clean team" alibi, and hoping to minimize the fallout from Capt. Allred's latest ruling.

As for al-Qahtani, described by his lawyer, Gita Gutierrez, as a "broken man, broken by torture," his only way out now is for the Saudi government to negotiate his repatriation. Gutierrez told Time that she was "extremely concerned about his ability to survive mentally and physically for much longer in Guantánamo," and stated, unequivocally, that the dismissal of charges "clearly indicates the government's awareness that any and all statements obtained from Mohammed [al-]Qahtani were extracted by torture or the threat of torture." Replace his name with that of Khalid Sheikh Mohammed or any of the other four men charged -- Ramzi bin al-Shibh, Mustafa al-Hawsawi, Ali Abdul Aziz Ali, and Walid bin Attash -- and you see the problem that faces the administration as it prepares for the most significant trial since 9/11.