Tuesday, July 22, 2008

And So It Begins

Last week I posted on the imminence of the trial of Osama bin Laden's driver, Salim Ahmed Hamdan, the first of the military commission's dog and pony shows. In that post I noted that the judge assigned to the trial seemed to have a grasp of the concepts of "fair trial" and "justice." According to this article in today's Los Angeles Times, Captain Keith Allred issued another ruling which seems to comport with those concepts, at least to some extent.

The military judge overseeing the first war crimes trial against a terrorism suspect at Guantanamo Bay agreed Monday to bar some evidence against Osama bin Laden's former driver because it was obtained in "highly coercive environments and conditions."

On the trial's opening day, Navy Capt. Keith J. Allred denied defense appeals to exclude other statements Salim Ahmed Hamdan made during interrogation by U.S. agents in Afghanistan as well as during his more than six years' imprisonment at Guantanamo Bay, Cuba. The judge said he would withhold judgment on a May 2003 interrogation until the defense had time to review 600 pages of detention records, which the government did not turn over until Sunday -- the night before trial. ...

Aside from withholding judgment on the May 2003 interrogation pending the defense review, the judge said interrogation results would be allowed into evidence only if the interrogators who conducted the sessions were available for cross-examination. Much of the evidence the government wanted to introduce was drawn from interrogations in which the notes and records of those involved were destroyed.
[Emphasis added]

Excluding evidence obtained under "coercive environments and conditions" (yet another euphemism for torture) was a good ruling. Withholding a ruling on the other interrogations until the defense has an opportunity to review the detention records, all 600 pages of which were delivered the night before the trial: eh, not so good. The prosecution's hiding of the salami until the last minute is the kind of misconduct which should have been punished with automatic exclusion. Still, Capt. Allred included a proviso for the admission of those records: the interrogators must be available for cross-examination, which the government has steadily refused to do, insisting that such availability would compromise "sources and methods." The judge has effectively set up another clash, one that will probably have to go all the way up the appellate road to the US Supreme Court.

All that said, however, Capt. Allred isn't exactly a knight in shining armor:

Hamdan testified during pretrial hearings last week that he was subjected to sleep deprivation, solitary confinement and sexual humiliation during interrogations at Guantanamo. Allred largely rejected motions to dismiss statements made during interrogations there, saying the techniques employed by detention officials could be "rationally related to good order and discipline. [Emphasis added]

Say what?

I suspect that what the judge intends is to allow the jury to make the decision on whether the conduct during those interrogations was so outrageous and so coercive as to be worthless in evidentiary terms. One could almost agree with this approach, but this is not a trial in a civilian court where the jury is composed of the defendant's peers. This is a military commission trial and the jury is composed of six senior military officers and an alternate, also a senior officer.

While Capt. Allred's various decisions indicate that he is willing to at least nod in the general direction of fairness and justice, this is not a fair trial, nor did the government intend it to be.

I am not optimistic.

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Anonymous Anonymous said...

You're entirely right; these are not intended to be fair trials. They are intended to be show trials that lead to convictions. Otherwise, they will undermine the whole purpose of the Guantanamo prisons, and the Administration has been fighting like hell to keep that institution alive.

It's sickening.

11:01 AM  

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