On Monday, just three weeks away from Guantánamo's sixth anniversary, military judge Captain Keith Allred dealt what appeared to be a severe blow to the legitimacy of the Military Commissions - the unprecedented trial system established to try Guantánamo detainees for war crimes - by ruling that he would undertake a review to determine whether Salim Hamdan, a Yemeni who worked as a driver for Osama bin Laden, was actually a Prisoner of War, as defined by the Geneva Conventions.
For an administration that has done all in its power to deny its legal responsibilities as a signatory to the Conventions, this was worrying news indeed, but just three days later Capt. Allred delivered his verdict, ruling that Hamdan was not entitled to be regarded as a Prisoner of War, and that his trial by Military Commission could proceed. Noticeably, however, his dissent, though fleeting, appeared so well argued that doubts remain as to whether he made up his own mind or was subjected to pressure from higher up the chain of command.
The Military Commissions, which were dreamt up in November 2001 by Vice President Dick Cheney and his advisor David Addington, and were intended to sidestep both the US courts and the traditional avenue of military prosecution via courts martial, have had a rocky history. From the moment that they were announced, concerned lawyers and human rights activists condemned them. In Guantánamo: What The World Should Know, one of the first books about Guantánamo, Michael Ratner of the Center for Constitutional Rights described them as "a system heavily slanted towards conviction," explaining that they were unacceptable because they "were going to be held outside the United States, totally in secret, with military officers as judges," and because "the prosecution was going to be allowed to bring in any kind of evidence, including hearsay evidence."
The most savage criticism, however, has come from the government-appointed military lawyers assigned to defend the detainees. Lt. Cmdr. Charles Swift, who took Hamdan's case in 2004, rapidly discovered the flaws with the system during his first visit with Hamdan, explaining, in an interview with Vanity Fair's Marie Brennan in March this year, that these included "no right to habeas corpus, no attorney-client privilege, forced guilty pleas for charges never made public, secret and coerced evidence, juries and presiding officers picked by executive fiat, [and] clients represented even if they declined legal counsel."
Swift also outlined his perception of the reasons for establishing the Military Commissions. "The whole purpose of setting up Guantánamo Bay is for torture," he said. "Why do this? Because you want to escape the rule of law. There is only one thing that you want to escape the rule of law to do, and that is to question people coercively - what some people call torture. Guantánamo and the military commissions are implements for breaking the law."
Working with Neil Katyal, a civilian lawyer, Swift pursued Hamdan's case to the Supreme Court, which, in a shocking blow to the administration, ruled in June 2006 that the Commissions were illegal under US law and the Geneva Conventions. Undeterred, the administration seized on a comment made by Justice Stephen Breyer - that "Nothing prevents the President from returning to Congress to seek the authority he believes necessary" to reestablish the Commissions - and, just three months later, persuaded a craven Congress to reinstate them in the Military Commissions Act (MCA), a hideously flawed piece of legislation that also stripped the detainees of their habeas corpus rights, established in another significant Supreme Court ruling in June 2004.
Swift, meanwhile, was passed over for promotion, ending his military career under an "up-or-out" system devised by the Pentagon, but he has since taken a job at Emory University School of Law in Atlanta, and continues to work on Hamdan's case as a civilian lawyer. His successor, Major Thomas Rougheen, a former New Jersey prosecutor who served in Iraq during the US-led invasion, has been no less forthright in criticizing the Commissions. In August, he told Carol Rosenberg of the Miami Herald, "It's like the Titanic. You know someday the ship is going to sink. God almighty, let's get there already." Moreover, Swift and Rougheen are not the only defense lawyers to have taken a principled stand against the Commissions. Others include Major Michael Mori, who campaigned tirelessly for the Australian detainee David Hicks, and Lt. Cmdr. William Kuebler, who continues to do the same for his client Omar Khadr, a Canadian who was just 15 years old when he was seized after a gunfight in Afghanistan.
In the meantime, while the defense lawyers have been mounting an increasingly vocal and visible campaign of opposition, the Commissions themselves have stumbled from one disaster to another. No successful prosecution has yet been achieved, and the government's only alleged victory - in the case of David Hicks, who accepted a plea bargain in March this year, admitting that he provided "material support for terrorism" and dropping well-documented claims that he was tortured by US forces in exchange for a nine-month sentence to be served in Australia - has been undermined in recent months by Col. Morris Davis, the Commissions' former chief prosecutor. Davis noisily resigned in October, and has since complained loudly that the entire trial system was compromised by political interference.
Judge Allred's part in this ongoing fiasco is no less significant. In June, when Hamdan was first hauled up before the reinstated Commissions, he and his colleague Col. Peter Brownback, who was presiding over the trial of Omar Khadr, derailed the whole process by throwing out the charges, pointing out that the MCA, which had authorized the revival of the Commissions, had mandated them to try "alien unlawful enemy combatants," whereas the tribunals at Guantánamo that had made Hamdan and Khadr eligible for trial by Military Commission - the much-reviled Combatant Status Review Tribunals, which also relied on secret evidence withheld from the detainees - had only declared that they were "enemy combatants."
Humiliated, the government responded by attempting to claim that the distinction was merely semantic (which it was not) and then declared that it would appeal the decision, causing further humiliation to its already damaged credibility when it transpired that the appeal court in question - the Court of Military Commissions Review - had not yet been established.
In August, a hastily convened court agreed with Col. Brownback that Khadr's classification as an "enemy combatant" at his CSRT "failed to meet the requirements for jurisdiction set forth in the Military Commissions Act," but explained that Brownback had "erred" in ruling that a CSRT was required to determine that Khadr was an "unlawful enemy combatant" as a pre-requisite for bringing charges against him under the MCA. They added, moreover, that he had "abused his discretion in deciding this critical jurisdictional matter without first fully considering" the government's evidence. As a result of this decision, the trials of Hamdan and Khadr were reinstated, but the Commissions have continued to attract weighty opposition.
Khadr's arraignment last month was notable for an explosive revelation, unveiled just 36 hours before the trial began, when the lead prosecutor, Major Jeff Groharing, informed Khadr's defense team of the existence of "potentially exculpatory evidence" from a "US government employee," who was an eye-witness to the gunfight in Afghanistan that led to Khadr's capture. Khadr's limping case will resume, with struggles over this "new" information, in 2008, but it's arguable that Allred's intervention on Hamdan's behalf was even more significant.
On December 5, while most eyes were on the Supreme Court, which was looking at the detainees' claims that the habeas-stripping components of the MCA were unconstitutional, Hamdan's lawyers were explaining to Allred, in a makeshift courtroom in Guantánamo, that, although Hamdan was a driver for Osama bin Laden, he was, essentially, a civilian who got caught up in the war in Afghanistan, and should therefore be regarded as a Prisoner of War, as defined by the Geneva Conventions, which would mean that he was ineligible for trial by Military Commission.
Ignoring the case put forward by the prosecution - who screened a video of bin Laden and Hamdan at a feast, and presented as a witness a US army officer who testified that Afghan forces under his command had captured Hamdan at a roadblock in November 2001, driving, alone, in a car that contained two surface-to-air missiles - Allred's decision to review Hamdan's status essentially followed on from the dissent he expressed in June, when he explicitly stated that Hamdan had never received "an individuated determination" that he was an unlawful combatant, as required by the Geneva Conventions, and that without this determination he and other detainees were entitled to be treated as Prisoners of War.
In a four-page ruling, Allred cited various legal sources, and took exception to the position held by both the government and Congress, who have both argued that Hamdan's CSRT was the equivalent of a status determination conforming to Article 5 of the Third Geneva Convention, which states that, should there be any doubt about the status of prisoners, who, like many of the Guantánamo detainees including Hamdan, were not part of a regular army in uniform, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
Responding to the conclusion reached in Hamdan's CSRT, on October 8, 2004, that he was "a member of, or affiliated with, al-Qaeda forces," Allred declined to agree that this was equivalent to an Article 5 status determination, pointing out that the CSRT "did not address his entitlement to Prisoner of War status, cite or discuss the Geneva Conventions of Article 5, or address the lawfulness of the accused's participation in hostilities," because the government bodies that had established the tribunals had "ordered the CSRT to make a different determination: whether the accused was an "enemy combatant," as defined ... for the purposes of continuing his detention." Consequently, he insisted, "Even if the Commission were to agree with the government that the 2004 CSRT process satisfied Article 5, it is clear from the Commentaries on the Geneva Convention that a second status determination must be made by a judicial officer for detainees the Detaining Power proposes to punish."
You see what I mean? Capt. Allred appeared to have put together such a compelling case for Hamdan's rights as a Prisoner of War - and against the system of Military Commissions as they currently stand - that his sudden decision to discard these well-honed arguments and to declare Hamdan an "unlawful enemy combatant" smacks of interference from the highest levels of the administration, where Dick Cheney and David Addington, in particular, are undoubtedly determined not to relinquish the malign project that they first established six years ago.
For more on the Military Commissions, see my newly published book "The Guantánamo Files: The Stories of the 774 Detainees in America's Illegal Prison"