Detainees’ rights debated as Guantanamo trial begins

After issuing landmark ruling, the Supreme Court has yet to clarify the appeals process for more than 275 Guantanamo detainees.

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The first war crimes trial to be held by the United States since World War II began on Monday, when Yemeni national Selim Ahmed Hamdan appeared before a military court in Guantánamo Bay, Cuba. The case proceeds despite continuing debate in Washington over detainees' legal rights in the wake of last month's Supreme Court ruling that allowed those in custody to challenge their detention in civilian courts.

Military prosecutors in Guantánamo accuse Mr. Hamdan of being the personal driver of Osama Bin Laden and having extensive inside knowledge of Al Qaeda. But his defense attorneys deny that charge and say that his interrogation in Afghanistan and at Guantánamo was conducted under duress, according to the BBC.

Prosecutors say he belonged to Osama Bin Laden's inner circle, and was heading for a battle zone when he was arrested, allegedly with two surface-to-air missiles inside his car.
Mr Hamdan has acknowledged working for Bin Laden in Afghanistan from 1997 to 2001 for $200 (£99) a month, but denies being part of al-Qaeda or taking part in any attacks.
Mr Hamdan's defence lawyers have argued that the statements were tainted by what have been called "coercive techniques," and he was not advised of his right against self-incrimination.
His lawyers have tried to halt the trial on grounds of legality.

After one day of trial proceedings, the defense was handed an important victory when the judge refused to allow the prosecution to enter evidence that was obtained under duress in Afghanistan. While military commission Judge Keith Allred allowed evidence obtained during interrogations in Guantánamo, the move could still have important implications for future Al Qaeda war crimes trials, writes The Washington Post.

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But the judge declined to suppress admissions made by Hamdan after he arrived at the U.S. military prison here, ruling that the Fifth Amendment did not apply to Hamdan and that "no coercive techniques influenced" what he said. Allred ruled, however, that to use the admissions, prosecutors must produce Hamdan's interrogators to explain the conditions under which the questioning took place.
Allred's willingness to throw out evidence in a proceeding against an accused al-Qaeda member could bode badly for cases the government expects to bring against planners of the Sept. 11, 2001 attacks, some of whom were subjected to far more coercive conditions. Khalid Sheik Mohammed, the self-confessed mastermind of those attacks, and other accused Sept. 11 conspirators are scheduled to be tried after Hamdan. Mohammed is one of three detainees the government has said was subjected to "waterboarding," a form of simulated drowning.

The military court system within which Hamdan is being tried has been controversial since it was established under the Military Commissions Act of 2006 because it allows for the use of hearsay evidence and some forms of coerced evidence, both of which are forbidden in US civilian courts. Trials are also held before a jury of between five and 13 uniformed military officers, who are free to question witnesses, as are the judge and attorneys.

The jurors in the Hamdan case have been drawn from US military posts around the world. For some of the jurors called to serve, years of fighting the 'war on terror' have made it a challenge to appear unbiased, reports Reuters.

The final jury includes two Army lieutenant colonels, an Army colonel, a Navy captain, an Air Force colonel and a Marine lieutenant colonel. Allred ordered their identities kept secret.
During questioning of the prospective jurors, the judge asked if they would have any bias against Hamdan because he was Arab, Muslim or Yemeni. All said no.
One prospective juror who was eliminated, a Navy captain and former policeman, said he knew the commander of the USS Cole, which was struck by a suicide bombing in 2000 in a Yemeni port, killing 17 American sailors. "No one wants to see shipmates hurt and killed. It angered me," he said.
Another was excused because he knew a prosecution witness....
Another was an Army officer who said he believed the war on terrorism had started in the 1990s, not after the September 11 attacks.
He said he worked in operations analysis and had seen classified reports on radical Islam. "Radical Islam exists and I believe we are at war with it," he said.

In June, the Supreme Court issued a ruling challenging a provision of the Military Commissions Act, called habeas corpus, that strips detainees of the right to challenge the legality of their detention. The court ruled that detainees could challenge their detention in the US civil court system, although the procedures for doing that have still not been clarified.

On the same day that the Hamdan trial began, US Attorney General Michael Mukasey urged Congress to act quickly to clarify this appeals process in a speech at the American Enterprise Institute, reports the Associated Press.

A Supreme Court ruling last month "stopped well short" of detailing how foreign suspects will be allowed to challenge their detention, Mukasey said in draft excerpts of a speech he was to deliver Monday morning.
"In other words, the Supreme Court left many significant questions open," Mukasey said in the excerpts that were obtained by The Associated Press.
He called it "well within the historic role and competence of Congress and the executive branch to attempt to resolve them." Mukasey was speaking at the American Enterprise Institute, a Washington think-tank.

The New York Times reports that, under the Mukasey plan, Congress would draft strict rules for the handling of Guantánamo appeals, which would all be funneled through the US district court in Washington, D.C.

He said all the appeals should be consolidated in a single court, probably the district court in Washington. Prisoners should not be allowed to physically attend the appeal hearings in the United States, he said, but they could view the proceedings from a secure video link from Guantánamo — a comment that appeared to signal that the administration plans to keep the base open for the time being.
The courts should also not be allowed to release a prisoner into the United States if he is cleared, he said. And the proceedings should not be allowed to delay the military commission trials at Guantánamo Bay, with some 20 prisoners now awaiting trial for war crimes and others expected to be tried later. Only after those trials are completed should prisoners be able to appeal their detentions to the civilian courts, the attorney general said.

But The Washington Post points out that Congress has only five weeks left to draft and pass legislation before going on a long summer break.

Speaking to The New York Times, several democratic leaders said they were in no rush to pass laws clarifying the appeals process for the more than 275 Guantánamo detainees covered by the Supreme Court decision.

Democratic leaders made clear Monday that they would not let the administration set a timetable for rushing through legislation that Senator Patrick J. Leahy of Vermont, chairman of the judiciary committee, called "ill-concieved."
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