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Court in the Act
7 August, 2008  
Loading of the dice

The Salim Ahmed Hamdan verdict is in from Guantánamo Bay. Stephen Keim weighs the trial process and the interim rulings of the senior military judge on the case, Captain Keith Allred

For the Bush administration Guantánamo Bay, and the military commission system that grew out of it, has been more about politics than justice – see Virginia Sloane, The Courage to be Neutral and Independent.

For the members of congress who passed the Military Commission Act, it was about compromising with justice on behalf of politics.

For many people, including the lawyers who have volunteered to act as defence counsel for Guantánamo residents, the whole thing has been an affront to justice.

imageAs we’ve 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 Guantánamo has become a permanent home.

To what extent have their efforts been ultimately successful?

The proceedings against Salim Ahmed Hamdan (pic) for conspiracy and assisting terrorism before a military commission, have resulted in acquittal on the former charge and conviction on the latter.

The military commission do hear arguments and make rulings – just like a real court.

Do these processes involve independent judges making fair rulings, or are they mirages in a system loaded against the defence?

A recent interim ruling in Hamdan’s case provides some clues.

The senior lawyer on the commission panel of six military officers dealing with Mr Hamdan is Captain Keith J. Allred.

There’s an article by Captain Allred in the Nato Review dealing with combating human trafficking. There he’s described there as, “a senior military judge in the Judge Advocate General’s Corps, US Navy. Between 2003 and 2005 he was on the faculty of the George C. Marshall European Center for Security Studies in Garmisch-Partenkirchen, Germany”.

Allred has already made a number of rulings over the last 12 months involving Hamdan.

On July 17, he ruled against an application based on an 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.

A useful summary of the proceedings involving Hamdan and the role played by Allred may be found here.

A ruling of July 20 involved an application to exclude statements made by Hamdan either on the basis that they had been made in violation of the his privilege against self-incrimination under the Fifth Amendment or because they resulted from coercive interrogation methods and so were inherently unreliable.

On the applicability of the Fifth Amendment privilege Allred held that right was not available to Hamdan as an enemy combatant.

He referred to the recent Supreme Court decision of Boumediene v Bush in which it was held that inmates of Guantánamo were entitled to apply for the writ of habeas corpus.

Fifth Amendment rights require suspects to be warned that they have no obligation to answer questions.

If the warning was not given (and the government has admitted that interrogators were instructed that they did not need to give a warning), statements are presumed to be involuntary and are excluded from being evidence in any trial.

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, he suggested that if the Fifth were available captors would not be able to interrogate new detainees to obtain important battle field intelligence.

The reasoning fails to consider an important point that intelligence gathering could still take place without the warning. The only consequence would be that the answers could not be used in criminal proceedings against the suspect.

His reasoning also fails to make a distinction between battle ground questioning and interrogation conducted over a number of years at Guantánamo Bay where battle field considerations did not apply.

On the applications to suppress interviews because of the circumstances under which they were made, Allred’s rulings varied.

He refused to suppress 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.

Yet he granted the application to suppress any statement where an official involved in the taking of the statement was not available to describe the circumstances and submit to cross-examination.

He granted the suppression application with regard to statements 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 Guantánamo 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.

However, his rulings also suggest his view of the Constitution and the legal issues is informed by an acceptance of the basic premises under which the commissions were set up and are expected to operate.

A complete picture of the type of justice available in the military commissions is yet to emerge.

Hamdan’s acquittal on one charge has been hailed by the White House as evidence that the process is fair.

What can be said is that 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.

The acquittal of Mr Hamdan, even of the more serious charge, will not assuage that concern.

Stephen Keim SC