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Forever Guantánamo

Detainee 002: The Case of David Hicks

by Leigh Sales
Melbourne University Press, 322 pp., AUD$32.95 (paper)


On February 11, 2008, the Pentagon announced that charges were being filed against six men in connection with the September 11 attacks, including Khalid Sheikh Mohammed, alleged mastermind of the attacks and one of al-Qaeda’s most senior members, and Ramzi bin al-Shibh, a leader of the Hamburg cell that included several of the September 11 pilots. It has taken nearly seven years for these men to be indicted—while more than 240 other prisoners continue to remain at Guantánamo in a state of indefinite detention without charge. In contrast, Britain, after one of the longest and most expensive trials in its history, has already convicted and sentenced four men for the failed attacks on the London subway on July 21, 2005.

Last year, British officials also arrested three other men for involvement in the deadly attacks on three London subway lines and a bus on July 7, 2005, two weeks earlier; they are scheduled to go on trial at the end of March. Spain has convicted twenty-one of twenty-eight men charged in connection with the terrorist attacks on commuter trains in Madrid in March 2004; and Indonesia has held lengthy trials and convicted four men who were accused of the terrorist attacks in Bali in October 2002, two of whom have been sentenced to death, and two to life imprisonment.

Justice delayed is justice denied” is a guiding principle of the American criminal justice system. The Bush administration has ignored this principle with impunity, and America’s image abroad has suffered greatly as a result.

The administration could have avoided much of the criticism it has received for its handling of terrorism suspects. It didn’t have to listen to the civil libertarians and human rights lawyers. All it needed to do was heed the advice of the country’s military lawyers. At a press conference in February announcing the charges against the six alleged al-Qaeda leaders, Brigadier General Thomas W. Hartmann outlined the basic principles of justice that would be observed in the trials, which were in line with what the military lawyers had long urged the Bush administration to uphold. He said the suspects would have the right to civilian counsel; the right to remain silent; the right to examine all evidence; the right to cross-examine every witness called by the prosecution; the right to be present. He also said that guilt would have to be proved beyond a reasonable doubt. During the questioning at his press conference, General Hartmann made emphatic promises:

There will be no secret trials. Every piece of evidence, every stitch of evidence, every whiff of evidence that goes to the finder of fact, to the jury, to the military tribunal, will be reviewed by the accused, subject to confrontation, subject to cross-examination, subject to challenge….1

General Hartmann did not say, however, whether all this evidence, which will certainly include allegations by the defendants that they were tortured while in US custody, will be made available to the public. While each defendant and his lawyer will have the right to see “every whiff of evidence,” will they be able to release it? Lawyers for the Guantánamo prisoners have had to agree to submit all their interview notes to the military before they can be released, which is usually denied. The lawyer Clive Stafford Smith—who has represented more than forty Guantánamo inmates, is likely to represent one of the six defendants, and is the author of Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay—told me that lawyers representing the six must agree to greater restrictions on what they can say publicly than those required in the past. Another lawyer confirmed this, but neither would say what the restrictions were, because even those are classified.

Even so, the rights the six will have are considerably greater than the Bush administration wanted to grant initially. General Hartmann said their rights were “virtually identical” to those accorded to military personnel tried in courts-martial. The word “virtually” may conceal further limits on the rights of defendants, but still, it has taken almost six years to arrive at the standards of judicial procedure that the military lawyers were arguing for from the outset.

As the Bush administration, in the weeks after the September 11 attacks, began hurriedly drafting rules to try suspects, the most senior military lawyers, from all four services, were “appalled” at the lack of rights that the administration proposed granting the defendants. So we are told by Leigh Sales in Detainee 002: The Case of David Hicks.2 In general, she writes, the uniformed lawyers “wanted the same level of due process that was available under the Uniform Code of Military Justice,” the criminal code for military courts-martial that is by and large respected as fair by civilian criminal defense lawyers. The Wall Street Journal recently reported that in 2001 and 2002, a senior Army lawyer, Colonel Lawrence J. Morris, had proposed public trials of the highest-level al-Qaeda suspects, which he thought would be similar to the Nuremberg trials, and would reveal the scope of the al-Qaeda conspiracy.3 He was ignored, and a team of lawyers he had assembled to gather evidence against these suspects was disbanded.

Instead, in November 2001, President Bush issued an executive order that set up military commissions under special administration rules. These proceedings, which could be closed at the judge’s discretion, could admit any evidence that the judge thought had a “probative value to a reasonable person,” which meant that hearsay and evidence gained through torture might be admitted. Only a two-thirds vote was required to convict; and there was no right of appeal to a civilian court.

Outside of the Bush administration and its most conservative supporters, these commissions were widely criticized, including by the British government under Tony Blair, which basically said it would not cooperate with them. In a public lecture, a justice on Britain’s highest court, Lord Steyn, called the tribunals kangaroo courts, as did a Marine Corps lawyer who was defending one of the Guantánamo detainees. In its June 2006 Hamdan decision, the Supreme Court ruled that the military commissions were invalid because they had not been authorized by Congress. The Court also found that the process was fatally flawed, citing in particular its allowance of hearsay testimony and testimony obtained from defendants through torture.

President Bush then went to the Republican-controlled Congress to create a new tribunal system for the September 11 detainees, and within four months it passed the Military Commissions Act. This established military tribunals that granted defendants more rights than they had had under Bush’s executive order—guilty verdicts now required a unanimous vote—but the act still allowed some testimony obtained through torture and without a search warrant, and it stripped detainees of the right to file habeas corpus actions, the long-established legal procedure for challenging one’s imprisonment. The New York Times called it “one of the worst laws in the nation’s history.”4

It is unclear why the Bush administration chose to file the charges against the six now. But some have suggested that the timing relates to the fact that the provision of the 2006 Military Commissions Act that denies detainees the right to file habeas petitions is currently before the Supreme Court—in Boumediene v. Bush—and a decision is expected before the Court’s term ends in June. “It’s all about politics, not justice,” a senior law enforcement official told me. Nothing has changed in the last three years, he said; there is nothing we know now that we didn’t know then. The official predicted that the Supreme Court will rule against the administration in the Boumediene case, because at least one of the Court’s conservatives will join the liberals in upholding the principle of habeas corpus. Bush will then blame the liberals on the Court for obstructing the prosecution of dangerous men, whose habeas petitions will slowly wind through the courts. Democrats, and the Democratic presidential candidate especially, will then be put on the spot to defend, or reject, what the Court did, he argued, and it is not hard to imagine the attack ads on anyone who does not support whatever legislation the Bush administration proposes to cure the defects.


The trials of the six alleged September 11 conspirators are months away, but if they occur, we may come closer to learning much of what we still don’t know about the administration’s rendition program—for example, the specific countries in which the so-called “high-value” detainees were held for questioning before being transferred to Guantánamo, and the interrogation techniques the CIA and others have used at those sites.

The trial of Khalid Sheikh Mohammed will potentially be the most revealing. After being picked up by the CIA in Pakistan in March 2003, he was held in a black site—the administration would never say where he was—until September 2006, when the administration announced that he had been taken to Guantánamo—it didn’t say from where. In congressional testimony in February, the head of the CIA, General Michael V. Hayden, acknowledged for the first time that the US had subjected him and two other suspected al-Qaeda operatives to waterboarding.

In his testimony, General Hayden said that the CIA had used outside contractors in interrogations, though he did not say specifically that they had engaged in waterboarding. He also said that “fewer than 100 people” have been detained at CIA facilities, leaving open the possibility that several dozen people have been subjected to coercive interrogation at black sites by the CIA. These disclosures raised another question: Who were the interrogators and where were they during the waterboarding and other applications of “harsh interrogation techniques”? Were they in the room during the torture? Or to give themselves some legal protection, and deniability, did they leave the application of force to others, returning after the prisoner had been softened up?

Even without trials, Congress could get answers to these questions if it wanted to, and without forcing Bush administration officials to reveal classified information. Congress could begin by calling some of the former detainees who were held at black sites. One such person is Mamdouh Habib, an Egyptian-Australian who was first picked up in Pakistan in October 2001. I spent several hours interviewing him after his return to Australia in January 2005, and he told me that he was interrogated in Pakistan by a blonde woman in her mid-thirties who spoke American-accented English, and that he was put through excruciating torture, including being made to stand on a rolling drum that had electrical currents going through it. Then he said he was taken by the CIA to Egypt—a fact that has been recently confirmed by the Australian government. He has also said that an American and an Australian were present during his interrogation in Egypt—an allegation that has never been confirmed—and that he was severely beaten. Habib was released from Guantánamo, in part, American and Australian officials have told me, because the Bush administration did not want his allegations of torture made public in court, and in part because the military prosecutors at Guantánamo did not believe they had a very strong case against him, Leigh Sales reveals, for what I believe is the first time, in Detainee 002.

  1. 1

    DOD News Briefing with Brig. Gen. Hartmann from the Pentagon,” February 11, 2008; for the transcript, see www.defenselink.mil.

  2. 2

    Hicks was an Australian knockabout who was picked up in Afghanistan in October 2001, having undergone some training with al-Qaeda; he would become the first suspect to have his case reach completion before a military commission, on one count of support for terrorism, which was unrelated to the September 11 attacks. He pleaded guilty, under a plea bargain arrangement, and was sentenced to a relatively light nine months detention, which he served in Australia; he was released on December 29, 2007.

  3. 3

    Jess Bravin, “Terror Charges Imminent in 9/11 Case,” The Wall Street Journal, February 11, 2008.

  4. 4

    Editorial, “The Democrats’ Pledge,” The New York Times, May 9, 2007.

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