By Andy Worthington
A military jury’s verdict on Wednesday
in the first U.S. war crimes trial since World War II — that Yemeni
Guantanamo prisoner Salim Hamdan is guilty of material support for terrorism,
but not guilty of terrorism itself — was the culmination of two weeks
of proceedings that provided some extraordinary insights into the United
States’ so-called “War on Terror.” And yet, as Jonathan Mahler
recently wrote in the New York Times, the lofty ideals of the Nuremberg Trials, which
opened with Chief Prosecutor Robert Jackson declaring, “That four
great nations, flushed with victory and stung with injury, stay the
hand of vengeance and voluntarily submit their captive enemies to the
judgment of the law is one of the most significant tributes that power
has ever paid to reason,” were not in evidence during the Hamdan
trial. Nor have they been manifested in the verdict.
Instead, the limited number of outside
observers attending the military commission trial of Hamdan, a driver
for Osama bin Laden, witnessed presiding judge Keith Allred — a principled
man in an unenviable position — struggling to turn a novel legal system
unconnected to the laws on which the United States were founded into
something resembling a fair trial, one to be respected in legal circles,
both in the United States and the wider world. The events of the last
two weeks revealed this to be a Herculean task.
Today’s military commissions are a modified
version of a system conceived in the wake of the 9/11 attacks by Vice
President Dick Cheney and his chief counsel, David Addington, and ruled
illegal and unconstitutional by the Supreme Court in June 2006. The
commissions’ many critics have remained unconvinced that they can provide
an adequate substitute for either U.S. law as practiced on the mainland
or the military’s own well-established judicial processes. Little, if
anything, that has emerged in the last fortnight has helped assuage
their doubts. Instead of vindicating Cheney and Addington’s belief that
a new legal system was required to try “terror suspects,”
Hamdan’s trial revealed a litany of dubious practices masquerading as
justice, including a disgraceful use of propaganda, misplaced prosecutorial
zeal, the shameful use of hearsay as evidence, abuse of the Fifth Amendment
protection against self-incrimination, and woefully blurred distinctions
between valid testimony and coerced testimony. The proceedings also
provided observers with piercing insights into the interrogation techniques
used in the “War on Terror,” which have served only to confirm
the supremacy of the agencies that favor kindness and psychological
maneuvering over those that favor coercion and brutality.
Two episodes toward the end of the proceedings
underscored the commission’s failings. In the first, defense testimony
from government employees was delivered to a closed court, undermining
the essential transparency of the process and tilting perceptions of
the trial in favor of the prosecution, whose entire case was conducted
in the open. In the second, senior al Qaeda operative Khalid Sheikh
Mohammed, though not present in person, delivered a statement dismissing
Hamdan as nothing more than a “primitive” man, unequipped
to be involved in the planning or execution of terrorist attacks. His
statement also managed to further undermine the trial through some acute
insights into what he described as fundamental failures of the U.S.
intelligence agencies.
A Historic Trial, But Is Anyone Watching?
Despite the supposed significance of
the Hamdan case, Mahler noted in the Times that the proceedings
“hardly have the feel of history in the making.”
They haven’t merited much discussion
in the presidential campaign; nor are we (as) a nation riveted by the
trial of the first defendant. ” Instead of a landmark case, one that
serves as a resonant reminder of the gulf separating us from our enemies,
we have detachment and ambiguity — not just about the extent of Hamdan’s
guilt but also about the wisdom of the entire tribunal process as well
as many other aspects of the prosecution of the war on terror.
These are valid points, and although
the detachment Mahler refers to can partly be explained by a general
hollowing-out of political awareness (in which a prurient obsession
with the peccadilloes of celebrities has taken root instead), part of
people’s detachment — and the ambiguity — can be explained by the
disconnect between the supposed importance of the trial and the reality
of the figure at its heart.
Although Salim Hamdan was a driver for
Osama bin Laden, he and his defense team have always maintained that
the Yemeni father of two, who has only a fourth-grade education, was
nothing more than a hired worker — one of seven drivers in total. According
to his attorney, he was not privy to the inner secrets of al Qaeda and
had no knowledge of or involvement in the attacks — on the U.S. embassies
in Africa in 1998, on the USS Cole in 2000, and on the U.S. mainland
in 2001 — that are the purported justification for the entire military
commission system.
Even the prosecution did not attempt
to insist that Hamdan was a major player. “We never put a rank
on him,” Col. Lawrence Morris, the commission’s chief prosecutor, explained to reporters. “We never suggested he was
in the top 17 or the top any-teen of al Qaeda. I don’t want ” to have
anybody have us appear to be asserting that he’s more responsible than
he is or that he’s higher-ranking than he is.” Morris’ opinions
were supported by the testimony of various agents over the course of
the two-week hearing. FBI agent Craig Donnachie, for example, explained
that Hamdan told him that he “had no interest in fighting after
completing his time” at a training camp in Afghanistan, and when
defense lawyers asked Donnachie if Hamdan had committed “to engage
in terrorist acts,” the agent replied, “He did not.”
Thus, as a landmark case, Hamdan’s trial
lacked the punch required to grab the attention of the nation, and is,
at some level, equivalent to trying Adolf Hitler’s driver in the Nuremberg
Trials in the absence of the Fuehrer himself. And the entire setup becomes
even murkier upon a close examination of the reasons for putting Hamdan
forward at all.
Testing the System and Concealing
Torture
While the commission’s most significant
defendants — Khalid Sheikh Mohammed (KSM) and four other prisoners
accused of direct involvement in the 9/11 attacks — wait in the wings,
it’s clear that Hamdan was put forward first for two very specific reasons,
neither of which cast a good light on the process.
The first is that he is being used as
a guinea pig to test whether the system actually works. The second is
that he is presumed to be relatively “clean” — in other words,
that he has not been subjected to the torture inflicted on the “high-value
detainees,” including KSM and his alleged co-conspirators. The
administration not only denies that it has been involved in torture,
but also denies that waterboarding (the now notorious technique to which
KSM and others were subjected, as admitted by CIA director Gen. Michael Hayden), is actually
torture. When it comes to putting these men on trial, however, the government’s
refusal to start the proceedings with KSM and his fellow defendants
serves only to confirm that legally (if not morally), they are aware
that they are on shaky ground.
Neither approach was entirely successful
in Hamdan’s case. Observers understand that, along with Hamdan, the
entire system is on trial, as William Glaberson of the New York Times described on July 29. “Mr. Hamdan’s trial
is, in a sense, two trials,” he wrote. “Mr. Hamdan is being
tried on accusations of conspiracy and material support of terrorism.
And the Bush administration’s military commission system itself is on
trial.”
Nor did the second ploy — denying torture
— proceed smoothly. Only one of the 20 prisoners so far put forward
for trial by military commission, an Afghan called Mohammed Hashim, has resisted mentioning that he was subjected
to either torture or coercion, but he appears to be nothing more than
a deluded fantasist who should never be on trial at all.
Voluntary vs. Coerced Testimony: Blurring
the Lines
Allegations of severe mistreatment have dogged the Hamdan case since his pre-trial proceedings,
during which his defense counsel hired an expert to examine his mental
state. The conclusion was that prolonged isolation had led to a situation
whereby he “met diagnostic criteria for Post Traumatic Stress Disorder
and Major Depression,” including “nightmares, intrusive thoughts,
memories and images, amnesia for details of traumatic events, lack of
future orientation, anxiety, irritability, insomnia, poor concentration
and memory, exaggerated startle responses and hypervigilance.”
Recent weeks revealed that he was subjected to sexual humiliation during
interrogations and a systematic policy of sleep deprivation, in which he was repeatedly moved from cell
to cell and prevented from sleeping for a period of 50 days.
As the trial began, Allred was required
to interpret the horribly blurred distinctions between voluntary and
coerced testimony that were written into the Military Commissions Act
(the legislation that revived the commissions after the Supreme Court
struck them down in June 2006). The MCA permits coerced evidence and
hearsay, as long as a judge considers them to be “reliable”
and “probative.” Allred confirmed that Hamdan had indeed been
subjected to legally dubious treatment and ruled out the use of any
testimony obtained by authorities while he was held in Afghanistan following
his capture, both at the U.S.-run prison at Bagram, and, as had never
previously been disclosed, at an Afghan prison in the Panjshir Valley,
north of Kabul. The Panjshir prison was one of several prisons in which,
as revealed in The Guantanamo Files, numerous “ghost prisoners” who ended
up in Bagram were subjected to what one of the prison’s captives, a
Libyan who escaped from Bagram in July 2005, later described as “hard
torture.”
In response to Hamdan’s complaints that, at Bagram, he was “kept in isolation
24 hours a day with his hands and feet restrained, and armed soldiers
prompted him to talk by kneeing him in the back,” and his additional
complaints that, in the Panjshir prison, his captors “repeatedly
tied him up, put a bag over his head and knocked him to the ground,”
Allred ruled out the use of statements obtained from the interrogations
because of the “highly coercive environments and conditions under
which they were made.”
This was not a good start for the prosecution.
But while it underscored how vague the parameters are for acceptable
evidence (making the judge the sole arbiter of the matter), Allred added
that he saw no problem admitting other statements that Hamdan had made
while he was held in other locations in Afghanistan and throughout his
imprisonment at Guantanamo. Even so, the prosecution complained. “We
need to evaluate ” to what extent it has an impact on our ability
to fully portray his criminality in this case, but also what it might
set out for future cases,” Morris explained.
Shredding the Fifth Amendment
In the meantime, Hamdan’s defense team
took the offensive. Michael Berrigan, the deputy chief defense counsel,
described the judge’s decision as “a very significant ruling”
because the prosecutions “are built to make full advantage of statements
obtained from detainees.” The defense team immediately asked Allred
to throw out all of Hamdan’s interrogations, arguing that, while at
Guantanamo, he had incriminated himself under abusive conditions, including
prolonged sleep deprivation and solitary confinement, and that any statements
he had made were an infringement of his Fifth Amendment rights.
The appeal was denied by Allred, who
declared that constitutional protections against self-incrimination
do not apply to “enemy combatants.” This led the case into
different, contentious territory, in which Guantanamo’s purpose as an
interrogation camp was explicitly revealed (in contravention of the
Geneva Conventions, which prohibit the interrogation of prisoners seized
in wartime, whether coercively or not), and the administration was obliged
to reveal far more than it might have wished about the nature of its
interrogations.
“Guantanamo Bay Is an Intelligence
Collection Point”
This part of the trial kicked off with
an explosive revelation by the former FBI interrogator and “al
Qaeda expert” Ali Soufan, who explained on the second day that
Guantanamo, as the Associated Press described it, “is the only place in the
world where he has not informed suspects of a right against self-incrimination.”
“The way it was explained to us,” Soufan said, “is Guantanamo
Bay is an intelligence collection point.”
This was an enormously significant statement,
as the prison’s true — and illegal — purpose is officially, as once
described by Donald Rumsfeld, to keep “committed terrorists ”
off the street and out of the airlines and out of nuclear power plants
and out of ports across this country and across other countries.”
Defenders of the so-called “War on Terror” argue that the
flight from domestic and international law is necessary to fight the
greatest threat the world has ever known — hence the rather inflated
Nuremberg analogies. But in reality, the administration’s behavior has
not only undermined the reputation of the United States; it has also,
as Hamdan’s self-incrimination specifically shows, led to a surreal
situation in which those who cooperate with their interrogators are
punished for their cooperation.
As the Los Angeles Times explained, “A parade of intelligence witnesses”
described Hamdan as “cooperative, cordial and a source of reliable
information about the terrorist hierarchy,” who “drew maps
to al Qaeda training camps and compounds for his captors,” and
“guided FBI and military intelligence agents to bin Laden’s private
residences and guest houses and identified photos of terrorist kingpins
still at large” while in custody in Afghanistan. At Guantanamo,
moreover, he reportedly provided “vital information” about
“key perpetrators” of the terrorist attacks in 1998, 2000
and 2001. Ammar Y. Barghouty, an FBI agent, explained that Hamdan’s
identification of the Saudi “high-value detainee” Abdul Rahim
al-Nashiri, who is accused of directing the attack on the USS Cole,
together with “his willingness to testify against him,” provided
the government with “a solid basis to prosecute the Saudi.”
Revelations About Interrogation Techniques
As these revelations were rolled out,
Hamdan’s treatment — and by extension the treatment of “enemy
combatants” in general — inadvertently came under close scrutiny.
Of particular interest was the testimony of FBI special agent George
Crouch, who interrogated Hamdan at Guantanamo for 13 days in June 2002.
Favoring the old-school approach to interrogation that focused on rapport-building
rather than brute force, Crouch explained how he “built a trusting relationship with
Hamdan during the marathon interrogation, bringing him special snacks
and working to ease his ‘concerns.'”
“Mr. Hamdan commented that he liked
McDonald’s fries, and we brought fries in,” Crouch said. Complaining,
as Reuters put it, that Hamdan “grew upset and uncooperative
when he was put in solitary confinement amid a series of interrogations,
prompting a heated complaint by Crouch to military guards,” the
FBI agent then explained that, on another occasion, “Hamdan’s mood
lifted when he was allowed to call and tell his wife that he was alive.”
“Mr. Hamdan cried quite a bit,” Crouch said. “He was
very grateful for the opportunity to speak to his wife. A burden had
been lifted from him. At least his wife knew he was alive.”
In contrast to Crouch’s approach to interrogations,
other agencies favored harsher methods, although no evidence was provided
that they were more effective. Disturbingly, the activities of the CIA
were declared off-limits during the trial, as were the CIA’s interrogations
in Afghanistan. Although Crouch said he successfully prevented Hamdan
from being kept in solitary confinement between his visits, the Los
Angeles Times reported that he was “unaware ” that during
the night Hamdan was also brought to interrogators of another U.S. agency,”
whose identity was not revealed, under what was described, with some
accuracy, as the court’s “secrecy practices.”
Like other witnesses, Crouch admitted
that Hamdan was not protected by the Fifth Amendment, although he maintained
that he was not happy about it. (“I would have read him his rights,”
he said.) He insisted, however, that although Hamdan played only a small
supporting role in al Qaeda, it was still significant. “Without
people like Mr. Hamdan, bin Laden would enjoy no support, he would not
enjoy protection, and he probably would not have been able to elude
capture up to this point,” he said. Even so, Crouch reserved one
last gesture of kindness toward Hamdan, admitting, “I don’t know
if I ever thanked him.”
What went largely undiscussed, however,
was the impact of Hamdan’s self-incrimination. Harry Schneider, one
of Hamdan’s lawyers, asked Crouch during cross-examination, “Did
anyone ever say, ‘You’ve got to understand, somebody can use this against
you?'” but Crouch said he “did not remember,” and it
was left to the defense to point out to both the jury and the agents
the absurd situation whereby, in contrast to the case that a cooperative
Hamdan had built up against himself, “the head of bin Laden’s bodyguards
— Hamdan’s boss — and an al Qaeda errand boy arrested along with Hamdan,”
who had “refused to cooperate with U.S. interrogators during their
time at Guantanamo ” were eventually released without being charged.”
As Ben Wizer, a staff attorney with the American Civil Liberties Union,
explained, “It’s perverse that the only person who agreed to cooperate
is being hung with his own words, while those who stayed silent are
home and free.”
In addition, no one mentioned a disturbing
corollary: that, by prosecuting a witness who has been so cooperative,
the administration very possibly fatally undermined its intelligence
agencies’ ability to secure the services of former insiders in terrorist
organizations who are prepared to reveal all they know in exchange for
protection.
Jack Cloonan, a former FBI special agent
who worked closely with former al Qaeda insider Jamal al-Fadi in the
years before 9/11, appreciated that brutality (“all that alpha-male
shit,” in fellow agent Dan Coleman’s words) was useless in building
a sustained and useful relationship with prisoners possessing genuinely
significant intelligence. “You think all of this stuff about torture
is going to make people want to come to us?” he asked. “That’s
why I get upset when I hear people talking about stress positions, loud
music and dogs.”
Shameless Propaganda
During the first week’s proceedings,
as Julia Hall of Human Rights Watch reported for Salon.com, the prosecution showed two videos taken shortly
after Hamdan’s capture in Afghanistan, which were “harrowing both
for what they depict and for the fact that they were admitted into evidence
at all.” Hall wrote that they “show Hamdan slumped on the
floor, hooded and shackled, as he is badgered by his Arabic-speaking
military interrogator in a dark room with one dim light bulb overhead.
An armed soldier is behind Hamdan, the interrogator in front.”
She added, “There is a sickening sense in watching that Hamdan
— visibly scared — is searching for the right words to appease the
interrogator, trying out ideas as they occur to him in an attempt to
avoid more abuse.”
While Hall noted that Allred had overruled
the defense team’s objection to the tapes being shown, deciding that
they were “in the interests of justice,” she also pointed
out that the Pentagon was not prepared to release the tapes to the general
public, citing a Pentagon source who said that they were being withheld
out of an “abundance of caution.” “Perhaps,” she
mused, “the DoD fears that the American public will know a coercive
interrogation when it sees one.”
At the start of the trial’s second week,
as if to compensate for the mixed messages in the “capture tapes,”
the prosecution returned with a slice of pure propaganda: “The
Al-Qaeda Plan,” a film modeled on “The Nazi Plan,” produced
for the Nuremberg Trials, and which was written, produced and narrated
by “international terrorism consultant” Evan F. Kohlmann.
(Kohlmann was paid $20,000 to produce the film, and another $25,000
to appear as an “expert witness.”) The film was described
by the Los Angeles Times as “a graphic 90-minute film chronicling
the history of al Qaeda,” including “footage of mangled corpses
in the rubble of the 1998 U.S. Embassy bombing in Kenya.” Despite
Allred’s assertion to the jury that it was being screened in order “to
provide an understanding of al Qaeda operations” and that Hamdan
was “not alleged to have been involved in any of these attacks,”
the film caused an uproar in the courtroom. Defense attorney Charles
Swift complained vociferously, describing the film as “extraordinarily
prejudicial” and accusing the prosecution of “trying to terrorize”
the jury. Morris responded, bizarrely, by claiming, “It is prejudicial,
which is why we show it,” adding, “I think people think prejudicial
is somehow wrong.” The showing of the film was clearly nothing
more than a propaganda exercise, much like the irrelevant footage of
Osama bin Laden shown last summer at the propaganda-fueled trial of
U.S. “enemy combatant” Jose Padilla.
A Tainted Confession
The next few days demonstrated yet again
that the commission judges have, to some extent, been empowered to invent
the rules as they go along. Allred decided to penalize the prosecution as they finished presenting
evidence, by preventing them from using what was described as “the
most complete summary of evidence against Hamdan,” compiled by
Ali Soufan and Robert McFadden of the Naval Criminal Investigation Service
(NCIS) in May 2003. This denial was a penalty for the prosecution’s
delay in handing over 1,200 pages of documents relating to Hamdan’s
interrogations to the defense team. (Despite repeated requests for the
documents, the prosecution had waited until the night before the trial
began to release them, leaving little opportunity to search through
the records for evidence of Hamdan’s abuse.) But the next day, vacillating
yet again, Allred allowed the prosecution to present its evidence after
all, while insisting that he would use a “higher standard”
to evaluate it and saying that the prosecutors would have to provide
“clear and convincing evidence” that Hamdan’s statements were
not obtained through coercion. Whether the judge remained true to his
word or not is a moot point; When McFadden took the stand, he declared
that Hamdan had told him that he had sworn bayat (pledged an
oath of loyalty) to bin Laden, even though no other interrogator had
managed to secure such a confession.
Hamdan, upon taking the stand, denied
that he had said any such thing. According to the Los Angeles Times, “he insisted that he had spoken only with
Soufan during the more-than-nine-hour interview and that despite Soufan’s
persistent questioning on the subject, he had never told him about swearing
allegiance.” Hoping to capitalize on what appeared to be a key
piece of evidence, lead prosecutor John Murphy then told the judge that
allegations of coercion had “cast a black cloud over these agents
and those who work with the detainees” and suggested that McFadden’s
testimony would “dispel that taint.” This prompted defense
lawyer Michael Berrigan to call the day’s proceedings “a farce,”
saying that the true “black cloud” was “the government’s
own creation,” which it had manufactured through the use of coercion.
Silencing the Defense
When the defense team finally got the
chance to present its case, Brian Glyn Williams, a professor of Islamic
history, attempted to explain Afghanistan’s history to the jury, focusing
on the differences between what he described as “two largely separate
al Qaeda missions: supporting Islamic warriors and committing terrorist
acts against enemy foreign states.” Echoing the words of FBI agent
Donnachie, Williams said Hamdan was recruited for a support role “because
he lacked the will for carrying out attacks,” and, moreover, was
incapable of assuming a role as an international terrorist. “I
don’t see him being that quality of material,” he said.
After this intriguing start, most of
the rest of the defense’s case took place behind closed doors. This
included testimony from Lt. Col. G. John Taylor and Col. L. Morgan Banks
III, the senior psychologist in the military’s SERE (Survival, Evasion,
Resistance, Escape) program, which subjects soldiers to torture in order
to train them to resist interrogation by enemy agents (and which is
widely regarded as the model for the brutality and humiliation to which
“War on Terror” prisoners have been subjected). The secrecy
was, naturally, criticized by the defense team. “It is not the
defense that has requested this closed session, but it is necessary,
according to the government, to protect the information,” said Lt. Cmdr. Brian Mizer, Hamdan’s military lawyer, who added pointedly,
“It is my hope that the American public will someday hear Mr. Hamdan’s
defense.”
Exactly what kind of state secrets Taylor
and Banks were supposed to be protecting is, of course, unknown, but
a defense statement revealed that they were called to testify because
they had served with U.S. Special Forces when Hamdan arrived at Bagram
on Dec. 28, 2001. This suggests that the court was closed because their
testimony would include evidence that revealed the “coercion”
that Allred was responsible for monitoring throughout the trial.
In fact, this imposition of secrecy interfered
with much of the defense’s case. For example, when Hamdan’s lawyers
appealed to Allred for McFadden’s testimony to be excluded, citing references
to Hamdan’s abuse at the time, almost all of the judge’s ruling (in
McFadden’s favor) was blacked out. But the most ludicrous example of
censorship occurred during the cross-examination of McFadden, when attorney
Harry Schneider Jr. wanted to ask the agent a question based on a book
that he held up in the courtroom. After some discussions with the prosecution,
Schneider admitted, “I’m told it’s classified, so I can’t ask you,”
even though the book was the best-seller, The 9/11 Commission Report.
“No court, civilian or military,
has credibility when it listens to secret evidence in a closed courtroom,”
Lou Fisher, the author of a book about the 1942 military trial of eight
alleged Nazi saboteurs, told the Washington Post. And Stacy Sullivan of Human Rights Watch, who
was excluded from the courtroom during the secret testimony, declared,
“The reason closed sessions are so troubling at Guantanamo is because
the government has so frequently claimed things have had to be classified
to cover up abuse and torture. In addition, trials of this magnitude
should have a public record. If a significant amount of evidence and
witness testimony is classified, it will be very hard to trust any verdict.”
The Damaging Testimony of Khalid Sheikh
Mohammed
The Hamdan trial ended, as it had begun,
controversially. In a 16-page written submission, Khalid Sheikh Mohammed,
who confessed during his administrative tribunal at Guantanamo last
year that he was “responsible for the 9/11 operation, from A to
Z,” delivered a defense of Hamdan that managed to be both patronizing
to Hamdan himself and witheringly critical of the U.S. administration’s
pursuit of his prosecution.
Describing himself as “the executive
director of 9/11,” KSM wrote, “He did not play any role. He
was not a soldier, he was a driver. His nature was more primitive (Bedouin)
person and far from civilization. He was not fit to plan or execute.”
While this description corresponded with
the defense team’s analysis of Hamdan’s role, it was unclear if the
jury would be prepared to accept KSM’s opinions, especially as, elsewhere
in his statement, he railed against the administration as a whole. “We
are not gangs,” he wrote. “As the American Army (we) have
drivers, cooks, crewmen and legal personnel. We also are human beings.
” We have interests in life. Our people have wives and children and
schools. ” You can not understand terrorism and al Qaeda from 9/11
operation.”
Addressing the question of how far culpability
for al Qaeda’s terrorist attacks could extend beyond the core leadership,
KSM added: “One of the reasons for the success of the outside operations
is the secrecy of the operations. So many of (bin Laden’s) inner circles
have no knowledge of what he was planning, and so many of al Qaeda’s
members and even the trainers at the military camps do not have any
knowledge of the works of the outside cells. That includes the civilian
employees.” Anyone who thinks that everyone involved in al Qaeda
was also involved in terror attacks, he said, “is a fool.”
The Impossibility of Escape
With that — and following muted testimony
from Walid bin Attash, another “high-value detainee” who maintained
that Hamdan “did not play any part in any planning” — the
trial came to an end. As the jury retired to consider its verdict, the
last of many “black clouds” to hang over the trial concerned
Salim Hamdan’s fate, regardless of whether he was found guilty or not.
Guantanamo’s new commander, Rear Adm.
Dave Thomas, admitted that he had not yet worked out what would happen
if Hamdan were found guilty. Under the commission rules, those convicted
are required to be held separately from the rest of the prison’s population,
raising the prospect that Hamdan could be held in complete isolation
for the rest of his life. “Asked how Hamdan could be separated
but not isolated,” as Reuters described it, Thomas admitted, blithely, “It’s
a great question. I’m not faced with it yet. We’ve thought that through,
and we have plans to accommodate, but I’ll cross that bridge when I
come to it.”
Just as disturbing, however, is what
would have happened had Hamdan been found innocent. As Rumsfeld explained in March 2002, even if an “enemy combatant”
is acquitted after a trial by military commission, “the United
States would be irresponsible not to continue to detain them until the
conflict is over.” What is particularly distressing about this,
of course, is not just that the administration believes that the “War
on Terror” may last for generations, but that it can so brazenly
state that it can hold men forever, even if they are found innocent
after a trial.
As Berrigan explained, the mere possibility
that the administration will hold men forever, even after their acquittal,
reveals that the commissions are nothing more than “show trials,”
as their critics have long maintained. Speaking to the Associated Press, Berrigan said, “What’s the purpose here?
Mr. Hamdan is going to be held until the government wants to release
him. It really has no connection to the underlying reality.”
Or, he could have added, to any notions
of justice.
Andy Worthington is a writer and historian,
and the author of The Guantanamo Files.