The Bush administration's efforts to circumvent the rule of law at Guantánamo may finally be catching up with it. But prosecutors in Guantánamo are pretending not to notice.
Last week, in Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees may challenge their detention in U.S. courts, putting to rest the administration's claim that Guantánamo lies beyond the reach of the U.S. Constitution.
And in hearings this week, members of Congress continued to investigate the role of top government officials in sanctioning torture by U.S. interrogators at Guantánamo and elsewhere. Senator Carl Levin opened one hearing by stating that former Secretary of Defense Donald Rumsfeld's decision to approve coercive interrogation techniques at Guantánamo "unleashed a virus" that quickly spread to Afghanistan and Iraq. Senator Levin also criticized the administration's contention that the abuse was the result of "a few bad apples" in the field rather than policy made at the very top by senior Bush administration officials in Washington.
On Wednesday, retired Army Major General Tony Taguba accused the Bush administration of committing war crimes. General Taguba, of course, led the courageous investigation into the abuses at Abu Ghraib. "The only question that remains to be answered," wrote General Taguba "is whether those who ordered the use of torture will be held to account."
But perhaps this week's most powerful indictment of Bush administration policies was made in Guantánamo itself, where on Thursday defense counsel Major David Frakt moved for dismissal of his client's military commission case on the ground of torture. With a 2002 order denying the applicability of the Geneva Conventions to al Qaeda and the Taliban, President Bush "started the U.S. down a slippery slope," said Major Frakt, "a path that quickly descended, stopping briefly in the dark, Machiavellian world of the ends justify the means, before plummeting further into the bleak underworld of barbarism and cruelty, of anything goes, of torture."
Major Frakt's client, Mohammed Jawad, was captured in Afghanistan at age 16 or 17 and has been held at Guantánamo for nearly six years. He is accused of throwing a hand grenade at a U.S. military vehicle, wounding two American soldiers and their translator. Jawad is one of only two Guantánamo detainees charged with an offense committed as a juvenile. If his case proceeds to trial, it will be the first war crimes trial of a child soldier in modern history.
Prison records establish that, in May 2004, guards subjected Jawad to a form of sleep deprivation cynically known by his captors as the "frequent flyer program." The guards moved him from cell to cell 112 times over a two week period, shackling, moving and unshackling him on average every two hours and fifty minutes. Just several months earlier, Jawad had attempted suicide.
Jawad was not interrogated during the period of sleep deprivation. In fact, Brigadier General Jay Hood, then commander of JTF Gitmo, has said that Jawad "was of little interest to me" from an intelligence standpoint, leaving Major Frakt to conclude that Jawad's treatment was "simply gratuitous cruelty."
The government has acknowledged that Jawad was subjected to the frequent flyer program, but the prosecutor refused on Thursday to characterize the conduct as abusive and denied that Jawad had suffered any harmful effects. "In no sense is it torture. In no sense is it coercion. In no sense is it such maltreatment that the charges should be dismissed," said the prosecutor.
It is up to the judge to decide whether to dismiss Jawad's case. But the government's claim that sleep deprivation is not abusive is flat out wrong. The Army Field Manual, which governs the conduct of military interrogators, categorizes abnormal sleep deprivation as "mental torture." Federal courts have found instances of sleep deprivation to violate the Constitution. And General Hood himself banned the frequent flyer sleep deprivation program at Guantánamo in March 2004, two months prior to the period the program was used on Jawad.
Major Frakt implored the judge to dismiss Jawad's case: "All you can do is to try to send a message, a clear and unmistakable message that the U.S. really doesn't torture," said Major Frakt. "And when we do, we own up to it, and we try to make it right."
According to Major Frakt, "the very legitimacy of the military commissions is at stake."
But this is where Major Frakt -- momentarily -- went astray. While the dismissal of Jawad's case would certainly send a message, it would not restore legitimacy to the military commission process, which is fundamentally and irretrievably flawed. The military commission rules permit the introduction of evidence obtained through coercion as well as hearsay evidence. (Had Jawad been interrogated as part of the frequent flyer program, statements he made under duress could be admissible against him at trial). The rules for classified evidence prevent defendants from seeing evidence of innocence or lack of responsibility. And, in violation of a fundamental tenet of law, defendants can be prosecuted and convicted at Guantánamo for acts that were not even illegal when they were committed.
What is more, the specter of unlawful command influence continues to weigh heavily at Guantánamo. Last month a military judge disqualified Air Force Brigadier General Thomas Hartmann from his duties as the Legal Advisor on Salim Hamdan's case on the ground that he had exerted at least the appearance of unlawful influence over the prosecution. As the Legal Advisor, General Hartmann is charged with giving impartial legal advice to the "Appointing Authority" of the military commissions. He is also charged with supervising the prosecution, but he is prohibited from influencing charging decisions in individual cases.
General Hartmann took the stand yesterday in Jawad's case to defend against a second motion of unlawful command influence. Though he denied having directed the government to swear charges in any cases, General Hartmann did acknowledge telling prosecutors to charge cases that would "capture the imagination of the American public." Two other witnesses -- including the former Chief Prosecutor, Air Force Colonel Morris Davis -- testified about Gen. Hartmann's particular enthusiasm for Jawad's case: Jawad's case went "from the freezer to the front burner" once General Hartmann arrived in Guantánamo, testified Colonel Davis. While the prosecutor who swore charges against Jawad disputed Colonel Davis' contention that he did so under pressure from General Hartmann, Major Frakt established that the government charged Jawad before knowing all the facts, and even before finding out that Jawad had been subjected to the frequent flyer program.
The Supreme Court has returned the Constitution to Guantánamo. Congress is beginning to uncover injustices that have occurred there and to identify those responsible. Perhaps even the judge in Jawad's case will "send a message" that torture is unacceptable and for Jawad, at least, "make it right."
But the military commission system cannot be fixed with one good decision. Its rules violate basic principles of justice and human rights, and the system itself has lost credibility in the eyes of the American public and the rest of the world. Many more cases are infected by torture. And yesterday's testimony exposed a pressure to charge cases that will satisfy the American public, which only furthers the perception that the military commission process is politically rigged.
The Military Commissions Act must be repealed. But a new system does not need to be created. A perfectly good one already exists: federal criminal courts. Since the first prisoners were transferred to Guantánamo in 2002, only one military commission case has been resolved--and that by a guilty plea. During the same period, more than 100 international terrorism cases have been prosecuted in the federal system. While the military commissions are still struggling with methods for handling classified evidence, the federal courts have specific procedures for balancing the need to protect sensitive national security information with defendants' fair trial rights. Guantánamo should be shut down, and the prisoners whom the U.S. government accuses of committing crimes of terrorism should be transferred to U.S. soil and prosecuted in federal criminal courts.