[NYTr] Hamdan military trial at Gitmo Gulag

[All the News That Doesn't Fit]

sent by MichaelP Dec 5, 2007

[This is a summary piece on the Hamdan case - it's being heard this
very day in GITMO , perhaps at the very time related matters are being
argued in the USSup Ct.

But while we may need to wait the SupCt  decision until July,
important things may be decided - even favorably - in today's the
military proceeding.  -Michael]


Human Events 
http://www.humanevents.com/article.php?id=23811

Justice at GITMO Today

by Roger D. Carstens

For the Hamdan case, it can't GITMO better than this.

Salim  Ahmed  Hamdan, the admitted driver and body guard for Usama Bin 
Laden,  will face evidence regarding his alleged unlawful status today
at the  military detention center in Guantanamo Bay, Cuba .  Hamdan's
path from  the  battlefield   --  where  he  was  captured during the
invasion of  Afghanistan  -- to a courtroom in Gitmo is storied, with
stops  at the  Supreme  Court of the United States, the United States
Congress, and even an appellate court or two.

But  today's  action  may trump them all in importance, as it may very 
well  turn  into  the  first  time  in  recorded legal history that an 
alleged  enemy  of  the  United  States  has his status as a combatant 
determined  in  a  judicial proceeding as opposed to an administrative 
one.

But  before  jumping  into  the events taking place at Gitmo today, we 
have  to  understand what's been happening on the Hamdan case since he
was captured.

Hamdan's  first  time  before a military commission was in November of 
2004,  but  it  was  cut  short  when  the U.S. District Court for the 
District  of  Columbia  determined  that  no  "competent tribunal" had 
decided  whether he was a POW or not; and that the military commission 
deciding  his  case  had violated the Uniform Code of Military Justice 
(UCMJ).  More  specifically,  the court decided that the President, as
the Commander-in-Chief,  did  not  have  the  statutory  authority to 
establish  such  a  tribunal;  and that part of the Geneva Conventions 
(Common  Article  3) applied to all prisoners captured in Afghanistan, 
thus almost (but not quite) providing them with Prisoner of War status 
(meaning  that  they had to be treated in a way that differed from how 
they   were   treated   under   the  designation  of  "Unlawful  Enemy 
Combatants").

Shortly after, the work of the military commissions was halted.

Later,  in July of 2005, the U.S. Court of Appeals for the District of 
Columbia  reversed Hamdan's appeal, stating that the Geneva Convention
did not  apply  to  members  of Al Qaida and thus were not judicially 
enforceable.   The  tribunals  were  also  deemed to be legal, but the 
reason  why  is so wrapped up in legalese as to be incomprehensible to 
anyone  but a lawyer or a man without a social life (uh, that would be 
me), so I will spare you. But trust me on this one.

The military commissions were soon back in action.  But not for long.

On  7  November 2005, the Supreme Court decided to review the previous 
decision  regarding  Hamdan,  and  on  29 June 2006 ruled in Hamdan V.

Rumsfeld  that  military  commissions  were not in compliance with the 
UCMJ  and  Common Article 3 of the Geneva Conventions.  Basically, the 
Supreme  Court  decided  that  the  President did not have the express 
powers  beyond those specifically granted to him by the UCMJ to create 
these specific military commissions; and that members of Al Qaida were 
entitled to some of the Geneva Conventions' protections.

Once again, the military commissions were halted.

Then  in  October  of 2006, the United States Congress decided to act, 
passing  the  bipartisan  Military  Commissions  Act  of  2006,  which 
addressed  the  Supreme  Court's  concerns  by  explicitly authorizing 
military  commissions  and  providing  them the statutory authority to 
conduct trials and prosecute detainees for war crimes.

Commissions: back on.  And Hamdan was charged again.

But  wait!   We are not done yet.  Take another sip of coffee and read
on.

Fast  forward to June of 2006, when a judge who was to decide the fate
of one  of  Hamdan's  fellow  detainees -- the Canadian Omar Khadr --
decided that  the  commission  did not have jurisdiction over Khadr's
case.

As  Hamdan's  case was next in the docket, his lawyers filed a similar 
request,  challenging  the  commission's jurisdiction.  Shortly after,
the charges against Hamdan were dismissed.

An  appellate  court  later  reversed  the  decision of Khadr's judge, 
stating  that  as  the  trial  judge,  he  has  inherent  authority to 
determine  for  himself whether the commission has proper jurisdiction 
over the accused.

(Look  - I know this is whole thing is rather taxing.  Kind of like an 
Agatha  Christie  "whodunit"  novel,  but without the part about being 
interesting.  But hang in there with me. We're almost done).

Following  the  decision  of  the  appellate court in Khadr, the trial 
judge   in   Hamdan   granted   the   U.S.  government's  request  for 
reconsideration  of  the  dismissal  of   charges against Hamdan.  The 
motion was granted.

Which  brings  us back to Hamdan and today's hearing.  Going along the 
lines  of the Khadr case, the judge today will make a determination as
to whether a military commission has the jurisdiction to hear the case 
against  Hamdan  (note: the judge does not decide  guilt or innocence; 
rather  he,   as  any other judge, acts as a sort of referee to decide
the legal  sufficiency  of  the   evidence  implicating  Hamdan as an
Unlawful Enemy Combatant.  A jury of military officers will ultimately
determine Hamdan's guilt or innocence).

So,  how  will this play out today? Well, for starters, the judge will
ask the defense whether they still want to challenge the jurisdiction
of the court to review this case.

If  the  defense says, yes, then the judge will ask the prosecution if 
they  are  ready  to  demonstrate  that  the court has jurisdiction by 
presenting  evidence.  The defense, in turn, will be asked if they are 
ready  to  present evidence in order to counter the prosecution (note:
the defense COULD say "we are not ready," but that would not bode well
for them, as they have had a lot of time to prepare.  It would be akin
to  not having a gift for your wife on Christmas morning.  And I think
that we all know how that would go down).

If  the  above  happens,  it  will  amount  to a "mini trial," where a 
damning  amount  of  evidence will be paraded -- for the first time -- 
before  the  court and the public probably showing Hamdan to be a very
bad man.

And the defense does not want this.  For years now, the court of world 
opinion  has  been  solidly against Gitmo, to the point that one might 
think that only innocent people caught in the wrong place at the wrong 
time  reside there.  Tapes, film, witness statements proving otherwise 
could  damage  Hamdan's  chances  later  on  down  the  line to accrue 
benefits  arising from the presumption of innocence in the eyes of the 
public opinion, the media, and politicians.

But  if  the  defense  elects  to  have a showdown, things may proceed 
quickly, with a possible outcome being the first time in legal history 
that  an  alleged  enemy  of  the  United  States  has his status as a 
combatant  determined  in  a  judicial  proceeding  as  opposed  to an 
administrative one.

That  said, a more probable outcome for today is that the defense team
-- not  wanting  to enable the prosecution to drag Hamdan through the
mud  -- will tell the judge that they wish to withdrawal the challenge
to  the court's jurisdiction at this time (they can -- at a later date
--  review the  bidding; but this allows the defense to live to fight
another day).

In  the absence of a challenge the appellate decision in Khadr directs 
that  a  properly  charged  and  referred  case  is  presumed  to have 
jurisdiction.

Hamdan  may  then choose to enter a plea;  however he will most likely 
defer entering a plea until a later date.

As a result, a period of "motions and filings" would take place (often 
referred to as the "paper battle") where the defense could be expected
to use   other   delaying   tactics,   such   as   challenging   the 
constitutionality  of  the court; challenging the constitutionality or
the impartiality of the judges; posing the applicability of the Law of
War; raising  the issue of habeas corpus rights  -- all in an attempt
to string the legal process out as long as possible.

But why? Because  delaying  allows  for  other pressures and court 
decisions to perhaps positively influence the outcome of the case.

As  the  case  stretches out to next year, politicians, candidates for 
office,  the  political parties, and perhaps even the President may be 
pressured into making a political decision to shut down Gitmo and move
all remaining prisoners to the United States, thus starting up a whole
new round  of  legal wrangling regarding jurisdiction, habeas rights,
etc.

Additionally,  other  detainee cases (like Boumediene v. Bush which is
to be  brought before the Supreme Court today for oral arguments) may
result in decisions that may impact the ongoing Hamdan case.

Frankly,  there  are probably other things that could happen -- things 
that  we  cannot  predict  --  that  would  result in a more favorable 
outcome for Hamdan.

Thus the delaying strategy.

OK:  we  now have some insight into where Hamdan has been and where it
is going. But what does this mean to you and me? Well, having recently 
retired from the military allow me to offer just one that comes 
immediately to mind: that precedent will be established that

--   turns battlefields into crime scenes;

-- requires Soldiers to "Mirandize" bad guys ;

--     forces  military  operations to become legal operations , where 
troops  in  the  field  will strike an enemy objective and suddenly be 
thrust  into a world of trial judges, attorneys, crime scene recovery, 
discovery .

--   pulls soldiers from the field to testify and defend their actions
in a  court,  resulting in military units becoming combat ineffective
for the duration of the trial.

Controlling  a  crime  scene is hard enough in a city like Washington,
DC. Imagine  having  to  control  a
crime  scene  in  a denied enemy territory.

And  allow me to leave you with a final thought.  I have visited Gitmo 
twice,  and  have  wrestled with detainee issues in places like Kosovo
and Iraq, and I am always left with a feeling of pride as I watch the 
professionals  of  our  military  legal system work tirelessly to give 
ethical and fair treatment to all.

You  may  disagree  and  challenge  the  concept  or  structure of the 
military  commissions; you may disagree and challenge recent court and 
Congressional decisions regarding Habeas Corpus; you may even disagree 
with  and  challenge  the Administration's policies.  That is all fair 
game.

But  please do not challenge the integrity of the men and woman of our 
legal  system who have taken a Constitutional oath to provide us their 
best.  We can continue to count on them to do what is right.


[Mr.  Carstens  is  a  Senior  Fellow  at the Center for a New
American Security.  He  recently  retired from the Army Special Forces
with the rank of Lieutenant Colonel.]