As Australians have seen with the defence lawyers who acted for David Hicks, a small group of people have devoted themselves to ensuring that some degree of justice is received by those for whom Guantanamo has become a permanent home. To what extent have their efforts been ultimately successful?
The proceeding against Salim Ahmed Hamdan for conspiracy and assisting terrorism before a Military Commission has seen a number of interim rulings.
Yes, the Military Commission hears argument and makes rulings: just like a real court. Do these processes involve independent judges making fair rulings or are they just mirages in a system loaded against the defence?
The senior lawyer in the Commission panel dealing with Mr Hamdan is military judge Captain Keith J Allred. Captain Allred has already made a number of rulings over the last 12 months involving Hamdan.
Understanding the Hamdan proceedings and the effect of Captain Allred’s rulings may provide early clues. The indications are not good.
On 17 July, he ruled against an application that rested on the argument that the Commissions were a breach of the right to Equal Protection under the US Constitution. He held that the Commission processes provided sufficient protection and that the equal protection clause did not apply. What does this ruling reveal about the military commissions?
Allred’s 20 July ruling looked at the defence’s application to exclude statements made by Mr Hamdan either because they had been made in violation of the accused’s privilege against self-incrimination under the Fifth Amendment to the US Constitution or because they resulted from coercive interrogation methods and so were inherently unreliable.
Fifth Amendment rights require suspects to be warned that they have no obligation to answer questions — otherwise statements are presumed to be involuntary and are excluded from trial. Captain Allred held that no such rights were available to Mr Hamdan as an enemy combatant.
He referred to the recent Supreme Court decision of Boumediene v Bush in which the Court held that inmates of Guantanamo were entitled to apply for the writ of habeas corpus.
In applying the criteria from Boumediene, Captain Allred’s reasoning is not particularly convincing and indicates an acceptance of the values inherent in the setting up of the Military Commission process.
For example, Captain Allred suggested that if the Fifth were available, captors would not be able to interrogate new detainees to obtain important battlefield intelligence. The reasoning fails to consider an important point that intelligence gathering could still take place without the warning. The only result would be that the answers could not be used in criminal proceedings against the suspect. The reasoning also fails to make a distinction between battleground questioning and interrogation conducted over a number of years at Guantanamo Bay where battlefield considerations did not apply.
As for the applications to suppress interviews because of the circumstances under which they were made, Captain Allred’s rulings varied.
He refused to suppress capture videos taken after Mr. Hamdan came into US hands, partially because there were witnesses available to be cross-examined about the circumstances under which those videos were made. He granted the application to suppress any statement where an official involved was not available to describe the circumstances and submit to cross-examination. He also said he would suppress any statement made in Panshir and Bagram in Afghanistan because of the highly coercive environments and conditions under which they were made.
However, Captain Allred found that, while Mr. Hamdan was subject to a number of coercive techniques during his custody, statements taken in Kandahar in Pakistan and at Guantanamo would be admissible on the ground that the Commission, on a preponderance of evidence, was satisfied that no coercive techniques influenced the making of those statements.
Captain Allred has, in the past, indicated an ability to make rulings against the prosecution in the Commission process. Aspects of his latest ruling reflect that. Ultimately, however, he seems to accept the basic legality of the Commission itself.
A complete picture of the type of justice available in the Military Commissions is yet to emerge. No doubt Mr. Hamdan’s case will result in more paint being added to the canvas. In the meantime, one can observe that persistent advocacy by defence lawyers is producing some results. On the other hand, there are still plenty of indications that the dice are loaded: against the defendants.