Latest Gitmo Setback: The Delayed Trial of Salim Hamdan

For most of 2008, the media's interest in Guantánamo has focused not on the majority of the 273 prisoners who are still held there without charge or trial and largely unknown to the outside world, but on the 13 who have been plucked from the grinding obscurity of indefinite detention to face trial by Military Commission, an innovation unrelated to either the U.S. courts or the U.S. military's own judicial processes that was conceived in November 2001 by Vice President Dick Cheney and his close advisers.

I have written at length about the stumbling progress of the Military Commissions, most recently here, where I ran through the problems that have beset the proposed trials in the last month alone. These include boycotts by the prisoners themselves, and the sudden and unexplained decision to drop charges against Mohammed al-Qahtani, one of six prisoners initially charged in connection with the 9/11 attacks. This was almost certainly because he, unlike the others, was tortured not in a secret prison run by the CIA (who cannot be compelled to provide evidence to the Commissions), but in Guantánamo itself, where no such exclusions apply.

The setbacks in the last month also include a blistering attack on the system by Col. Morris Davis, the former chief prosecutor of the Commissions, who accused his superiors of pressing ahead with politically motivated trials and of seeking to allow evidence obtained through torture, which, he pointed out, were destroying the trials' credibility. So persuasive was Col. Davis' testimony (in the case of Salim Hamdan, a Yemeni who was once one of Osama bin Laden's drivers), that on May 9th, the judge in Hamdan's case, Navy Capt. Keith Allred, prohibited Col. Davis' former boss, Brig. Gen. Thom Hartmann, from playing any further part in Hamdan's forthcoming trial.

All these setbacks reflect badly on the integrity of the Commissions, of course, but until recently, discussions about the role of the Supreme Court in determining the prisoners' status had been overlooked. This was understandable in one way, as it is now nearly eleven months since the Supreme Court decided to look once more at the prisoners' rights (along the way reversing itself for the first time in 60 years), but was completely incomprehensible in another, as the Supreme Court's pending decision has been the elephant in the room since last December, when former Solicitor General Seth Waxman (for the prisoners) and the soon-to-retire current Solicitor General Paul Clement (for the government) presented their cases in what was rightly billed at the time as "the most important habeas corpus case in modern history."

Throughout this year, therefore, those who have been following developments at Guantánamo have been aware that a crucial decision has to be made before the Supreme Court's current session ends in the summer. However, it was not until Capt. Allred spoke up, following on from his recently established notoriety with regard to Brig. Gen. Hartmann, that the justices were once more pushed back to center stage.

Postponing the start date for Salim Hamdan's trial from June 2 to July 21, Capt. Allred stated that this will give the prosecutors and defense "the benefit of a decision that may well change the tenor or conduct of the trial," as the Associated Press reported. He added that a delay will avoid the "potential embarrassment, waste of resources and prejudice to the accused," if, as the AP put it, "the Supreme Court ruling forces a halt to the proceedings mid-trial."

While Andrea Prasow, one of Hamdan's lawyers, said that the defense team was "very pleased that the judge agrees that all parties will benefit from the Supreme Court's guidance regarding the applicability of the Constitution to detainees held at Guantánamo," it was more noticeable that Capt. Allred had, for the second time in a week, humiliated the government simply by taking his job seriously. It appears, moreover, that he has been studying his calendar closely, as he is more aware of the cycles of Supreme Court decisions than many reporters.