The NewStandard ceased publishing on April 27, 2007.

Guantanamo Prisoner First to Challenge Military Tribunals

by Martha Baskin

Lawyers acting on behalf of Salim Ahmed Hamdan, a Yemeni who was detained in Afghanistan and imprisoned at Camp Echo, call into question the legality of their client's detention and upcoming military trial.

June 27, 2004 – A lawsuit challenging the US government’s detention and prolonged incarceration of a prisoner at Guantanamo Bay’s Camp Echo encountered a delay this week when the Department of Defense moved to classify key documents which describe his treatment at the island prison.

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In a letter to a US District Court in Seattle, the Department of Defense requested two weeks to review the documents and report back to the court. Military spokesmen denied there was any attempt to hide what is going on at Guantanamo’s secretive detention center and said the review could result in all or part of the documents being made public.

The lawsuit is the first case challenging the legality of the military tribunals to reach a trial court and pits a prisoner held in solitary confinement against Secretary of Defense Rumsfeld, President Bush and commanders of Camp Echo.

At the center of the case is Salim Ahmed Hamdan, caught in the legal netherworld created by the Bush administration after 9/11. Hamdan’s profile is unique but the formula for his arrest is familiar: imprisoned without charges; held incommunicado without access to a lawyer for nearly two years; and according to legal pleadings, told that unless he pleads guilty to an unspecified crime against the US in a manner satisfactory to those detaining him, he may be held indefinitely.

The government’s case against his client is so weak, says Swift, that Hamdan has yet to be charged with anything.

According to his court-appointed military lawyer, Lieutenant Commander Charlie Swift, Hamdan was seized in the aftermath of the US bombing of Afghanistan by soldiers loyal to the former king of Afghanistan, Zahir Shah. The soldiers were searching for Arabs to sell to American forces then engaged in military action against the Taliban and paying a premium bounty for "Al-Qaeda suspects." In November of 2001 Hamdan was taken to the detainment and interrogation facility at Guantanamo Bay. Last July President Bush designated Hamdan and 5 others detainees as the first so-called "enemy combatants" to appear before military tribunals.

On January 30, 2004 Swift met with his client for the first time, and on February 12, 2004 he submitted a demand for charges and a speedy trial to the military authorities calling upon Article 10 of the Uniform Code of Military Justice and the Geneva Conventions. The request was denied.

The government’s case against his client is so weak, says Swift, that Hamdan has yet to be charged with anything.

According to Swift, Hamdan is 34 years old, married and the father of two young children. Born in Yemen, he has the equivalent of a fourth grade education. Hamdan worked sporadically as a taxi and bus driver, but like most Yemenis, supported himself largely by working outside the country. In the early 1990’s he was recruited to assist Muslim efforts in rebuilding Tajikistan after the Soviet withdrawal.

By 1995, tired of the struggle, Hamdan was reportedly heading back home through Afghanistan when he was offered a job as a civilian driver for a very rich man. The man, it turned out, was named Osama bin Laden. Initially Hamdan drove agricultural workers to bin Laden’s farm in the southern Afghan city of Kandahar. Later he drove workers to various rebuilding sites initiated by bin Laden. Eventually he started driving Osama bin Laden himself -- something he did off and on until September 11, 2001.

Hamdan adamantly denies he was ever a member of Al-Qaeda or engaged in any type of terrorist activity. He worked for bin Laden solely for the purpose of supporting himself and his family and he wants the chance to prove it. Hamdan’s legal team -- an unusual legal constellation including Lt. Cmdr. Swift, attorneys from the high profile Seattle law firm of Perkins Coie, and a Georgetown Law professor named Neal Katyal -- wants to give Hamdan that chance. In April of this year, after constant rebuffs by the administration, they filed a lawsuit against Secretary of Defense Rumsfeld and President Bush challenging Hamdan’s detention.

"Well who else could it be filed against?" asked Lt. Cmdr. Swift matter-of-factly. "The Secretary of Defense created the instructions [for the treatment of "enemy combatants"], the president signed the military order. They control the entire process. I went to the federal court to seek relief from the government’s absolute unwillingness to do anything."

Swift wants Hamdan’s case to be heard in a civilian court. He says that even were the administration to suddenly offer Hamdan a military tribunal, it would be illegal on multiple jurisdictional and constitutional grounds. The Military Order under which Hamdan is held applies only to noncitizens. As such, asserts Swift, it runs afoul of the Equal Protection Clause of the US Constitution.

Law professor Neal Katyal says that after the Civil War, the framers of the Equal Protection Clause understood that discrimination against aliens was so pervasive that due process was guaranteed only to citizens. The Framers intentionally extended the reach of the Clause to "persons" rather than confine it only to "citizens." According to Katyal, the Bush administration’s military order resurrects the concept that foreigners can be shunted into a second-class system of justice.

Hamdan’s legal team argues that military tribunals also violate the separation of powers between the executive, legislative and judicial branches of government. Katyal worked closely with Swift and the attorneys at Perkins Coie to develop the legal and Constitutional argument. He contends the case is the most significant since World War II to address the relationship between the military justice system and the civilian courts. He says unilateral military orders such as those imposed by the Bush administration on Hamdan seriously undermine the American system of justice.

President Roosevelt authorized military tribunals for Nazi saboteurs during World War II, but he did so in the context of a war that was declared by Congress.

"Congress hasn’t declared war nor can we envision the possibility of any kind of finite end to the war on terror," said Katyal. "So the power the president seeks in this case is a power to short circuit military justice not just for a year or two but potentially for our entire lifetimes and the lifetimes of our children."

In addition, Hamdan’s lawyers argue, military tribunals violate the Geneva Conventions and treaties that lay out the laws of war. Article 103 of the Third Geneva Convention provides that POW investigations should be carried out "as rapidly as circumstances permit" so a trial can get underway "as soon as possible."

The Convention also says foreign POWs are to be handled essentially as a member of the detaining power’s armed forces would be for similar charges, and it plainly caps the confinement period at three months. "Should any doubt arise as to whether persons... belong to any of the categories [entitled to protection as a POW under the Convention]," states Article 5 of the Convention, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

But perhaps the most fundamental tenet of justice Hamdan has been denied, say his lawyers, is the right of habeas corpus -- the right to be informed of the charges brought against him and a timely right to challenge those charges in a court of law. "It’s an ancient doctrine in the law that basically precludes any government from being able to seize individuals, throw them in prison and, in effect, throw away the key," explains Harry Schneider, lead civilian counsel with the law firm Perkins Coie. "It’s what separates this country from other powerful, rich and militarily strong countries; an independent judiciary that can make decisions to hold in check decisions by the executive or congressional branches."

Finally, Hamdan’s lawyers seek relief for their client through a civilian court because they say he doesn’t meet the criteria established in the Military Order for identifying individuals subject to its terms. Such individuals include members of a group recognized as a "terrorist" organization by the US, combatants actively engaged in acts of war or violence against the US, and those who have participated in plans to kill or injure American citizens or damage American property. According to his lawyers, Hamdan is not a member of a terrorist organization. He was not a combatant in Afghanistan at the time of his apprehension, has never taken up arms against the US and has never participated in any plan to kill or injure Americans or to damage American property, they say.

The Justice Department has declined to elaborate on the case. In legal filings it states there is "reason to believe" Hamdan was a member of Al-Queda or otherwise involved in terrorism. Court papers indicate that all detainees have gone through what is called a multi-step screening process to determine if their detention is necessary. In news briefings, federal authorities have said the tribunals were designed for flexibility.

Last month, a series of Justice Department memos surfaced. Written in late 2001 and early 2002 by Department legal advisers, the memos outline a legal framework for US officials to avoid complying with international laws and treaties on handling prisoners. The memos provide legal arguments to support the administration’s assertions that the Geneva Conventions do not apply to some detainees from the Afghanistan war.

Lt. Cmdr. Swift’s immediate goal is to get Hamdan out of solitary confinement at Guantanamo’s Camp Echo, and put back into the general population. Since December 2003 Hamdan has been confined alone in a cell. He receives 60 minutes of exercise three times a week, only at night.

Hamdan has been evaluated by psychiatrist Daryl Matthews, a professor of psychiatry at the University of Hawaii who has also previously held faculty positions in medicine and public health at several other universities. Based on an analysis of Hamdan’s history, Dr. Matthews concludes that the "conditions of his confinement place Hamdan at significant risk of future psychiatric deterioration." Additionally, Dr. Mathews’ declaration to the court says Hamdan’s conditions of confinement render him particularly susceptible to mental coercion and false confession in conjunction with the case.

Last month, US District Judge Robert Lasnik in Seattle ordered a delay in the lawsuit until the end of June when the Supreme Court is expected to decide on whether those imprisoned at Guantanamo have any rights in federal courts. The Bush administration says they do not.

This week’s move by the Department of Defense to classify key documents may have been expected. When the case was initially filed in federal district court in Seattle the documents in question were unclassified but under court seal. It was not until the presiding judge raised the possibility of unsealing them and various members of the media asked the court to do so that the Defense Department classified them.

In a June 22 letter to Judge Lasnik, Assistant US Attorney Brian Kipnis identified the three documents now classified and up for review. They include Swift’s six-page declaration containing, "among other things, a detailed physical description of the place where Salim Hamdan is confined and information concerning his daily routine and those guarding him."

In May, Swift told the Seattle Post-Intelligencer that the documents contain allegations of mistreatment beyond solitary confinement that could be seen as violating the Geneva Convention.

On Thursday, Payam Akhavanm, a human rights fellow at Yale Law School and former chief legal adviser to the UN war crimes tribunal for Yugoslavia told the Post-Intelligencer: "Prolonged solitary [confinement] is very serious even though it is not an overt beating. Beating may be far less painful than this kind of isolation. It can totally destroy people psychologically. That is, of course, the purpose of torture: you want them to break down so they can no longer resist."

Hamdan’s legal team believes "there is nothing classified about the documents in any way, shape or form." They told Judge Lasnik in May that they had no objection to the documents being made public.

Regardless of the various twists and turns in the case, Georgetown’s Neal Katyal believes the claim for federal court review is "overwhelming". He has no doubts that the federal courts will hear the case of Hamdan v Rumsfeld sometime soon. A trial is tentatively set for September. For the time being, Salim Ahmed Hamdan remains in solitary confinement at Camp Echo.

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The NewStandard ceased publishing on April 27, 2007.

Martha Baskin is a contributing journalist.

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