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Gitmo Trial Begins, but Questions Loom Over Detainee Legal Process

July 21, 2008 at 6:30 PM EST
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After years of legal delays, the trial for Osama Bin Laden's former driver began Monday at Guantanamo, marking the first full-scale military tribunal at the base since it opened in 2001. Two legal experts examine the future of the detainee program.
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RAY SUAREZ: After almost seven years of false starts and lengthy delays, the first military tribunal of a terrorism suspect got under way today at the U.S. Naval base in Guantanamo Bay, Cuba.

The defendant is Salim Hamdan, a Yemeni who served as Osama bin Laden’s driver. He was picked up in Afghanistan in November 2001. Today, Hamdan entered a not guilty plea on charges of conspiracy and supporting terrorism. If convicted, he faces life in prison.

But Hamdan’s trial comes after the Supreme Court ruled last month that Guantanamo detainees have the right to challenge their detention in civilian courts. That ruling, known as Boumediene vs. Bush, has caused further confusion in the legal community.

Today, Attorney General Michael Mukasey urged Congress to step in.

MICHAEL MUKASEY, Attorney General: It hardly takes a pessimist to expect that, without guidance from Congress, different judges even on the same court will disagree about how the difficult questions left open by Boumediene should be answered. Such disagreement will in turn lead to a long period of protracted litigation and the possibility of different procedures being used in different cases, until perhaps the Supreme Court intervenes yet again.

RAY SUAREZ: For a closer look at what is next for Salim Hamdan and the nearly 270 other detainees still held at Guantanamo, we turn to Andrew McBride — he’s a former federal prosecutor now in private practice in Washington — and Neal Katyal, professor at Georgetown University Law School. He represented Salim Hamdan before the Supreme Court in 2006.

And, professor, why is this case going ahead after the Boumediene decision gave people like Salim Hamdan access to the civilian courts to challenge their detentions?

NEAL KATYAL, Georgetown University Law Center: Well, we asked the federal courts to temporarily delay this newfangled tribunal that Mr. Hamdan faces, so that it could examine the impact of the Supreme Court’s ruling, because this new tribunal that Mr. Hamdan is facing was written by Congress with one single assumption in mind, that the Constitution of the United States doesn’t apply at Guantanamo.

The Supreme Court last month rejected that idea. And, so, we asked the court to delay things. And what the federal court did last week was, it said, well, that type of challenge can be heard after the trial, that, even though these trials are unlike any other that America has had — for example, the judge said that they startlingly admit coerced testimony — he said, let’s hear about those challenges after the trial takes place. And, so, that’s what is happening right now.

In defense of the Hamdan trial

Andrew McBride
Former Federal Prosecutor
The idea that these military tribunals are some kind of kangaroo court is false. The presiding officer in Hamdan's trial has said he will be allowed to call as a witness Khalid Sheikh Mohammed. Now, that's something the government doesn't want.

RAY SUAREZ: Andrew McBride, you hear someone pleading for their client for a delay. Why go ahead with the Hamdan trial in light of Boumediene?

ANDREW MCBRIDE, Former Federal Prosecutor: Well, I think both the federal district court and the presiding officer of the military commission rejected the arguments that Mr. -- or Professor Katyal just made, and properly so.

I also think the idea that these military tribunals are some kind of kangaroo court is false. The presiding officer in Hamdan's trial has said he will be allowed to call as a witness Khalid Sheikh Mohammed. Now, that's something the government doesn't want to happen.

And, in the past, military commissions of very similar composition with similar procedures have acquitted many defendants, including Nazi defendants in World War II who were accused of military crimes, and acquitted of them. I think it's unfair to say that these military commissions at the outset, when we are starting the first one, are kangaroo courts.

And I would give the military a chance to run the trial, as Judge Robertson held. And, if there's a problem, we can look at it afterwards.

Boumediene, the case we were discussing, did not address military commissions. So, it should not be applied to military commissions. And that is what the attorney general said today.

RAY SUAREZ: Professor, isn't Andrew McBride right when he suggests that, while, in earlier versions of this process, exculpatory witnesses called by the detainees were not necessarily going to be seated, but it looks like it is going to happen in your client's case?

NEAL KATYAL: The government has said in every version of the system that exculpatory witnesses could be permitted. There is no real difference.

And, for example, on Khalid Sheikh Mohammed, we were -- Mr. Hamdan is accused of conspiring with him. He was able to -- his attorneys were able to meet him for the first time yesterday, the eve of trial, some -- and interview him to see what he knew and didn't know. That would never happen in a federal court or in our proud American military system, our court-martial system.

More to the point, while Mr. McBride is right to say we have had military commissions in the past -- and, by the way, there were no Nazis that were freed in -- out of those military commissions in World War II. But we have had them in the past. But they have never looked like these. They haven't -- they haven't been designed to admit testimony taken by torture, and they have never -- or coercion.

And they have never, ever excluded American citizens from the process. This is the first military commission in American history that only applies to the five million foreigners and 12 million or so green card holders.

Every other military commission, starting with the very first ones in 1847, applied to citizens and aliens alike. And that is important constitutionally, because, as Justice Scalia has said, the whole purpose of the equality clause in the Constitution is to make sure that our policies are evenhanded and fair.

And, if Congress can slice and dice the population, and apply unfavorable policies only to some, that is a -- then, it is a recipe for disaster.

RAY SUAREZ: Quick response?

ANDREW MCBRIDE: First of all, on the military tribunal point, I believe there were about 90 military -- Nazi military officers who were tried for the slaughter at Malmedy, where they -- the Nazis felt they couldn't hold American troops, they couldn't hold POWs. They didn't have the manpower. And I think about 10 of them were acquitted in that particular case.

More generally, what I would say is, the distinction between a foreign national and a United States citizen is entirely proper. I believe the United States citizen is entitled to a trial for treason if he or she has allied him or herself with the enemy.

But these are foreign nationals. The only connection they have with the United States is the fact they have been apprehended by our military. They have never said, I want to have the rights and obligations of a citizen of the United States. And they shouldn't have the same treatment as a citizen of the United States.

Hamdan's rights, if convicted

Neal Katyal
Georgetown University Law Center
The Pentagon has said explicitly, even if he is acquitted, he still is going to be detained. These are trials with literally nothing at stake in them. And, you know, either way, it is a sad situation for someone like Mr. Hamdan.

RAY SUAREZ: How else will this look different from a trial in a civilian court?

ANDREW MCBRIDE: Well, there will be five military officers, one military officer presiding.

Their -- you know, the confrontation right, obviously, is there, cross-examination. That's criticized, because the witness hasn't been produced quickly enough. But, frankly, in my experience, a witness in high security, whether civilian or military, will be produced at the last minute. And, so, that's not that unusual in that effect.

The rules of evidence might be slightly relaxed in the case. There may be hearsay admissible in some circumstances. And the right to confrontation may be relaxed. But those are all incidents of a military trial. And they're all actually quite close to the procedures that the Supreme Court said citizens -- citizens of the United States were entitled to in a military tribunal in the Hamdi case, quite close. That is what they were modeled on.

RAY SUAREZ: Professor, after the Boumediene decision in the Supreme Court, if Salim Hamdan is convicted, will he have the right of petition in the civilian courts to take his appeal?

NEAL KATYAL: Yes, he will. That is what the judge last week said. He said, even though these tribunals are really quite different than the way Mr. McBride is trumpeting them out to be, he said Mr. Hamdan can raise those challenges afterwards, not now.

RAY SUAREZ: And, if he is acquitted, does the United States government have to release him?

NEAL KATYAL: No. The Pentagon has said explicitly, even if he is acquitted, he still is going to be detained. These are trials with literally nothing at stake in them. And, you know, either way, it is a sad situation for someone like Mr. Hamdan.

The involvement of Congress

Andrew McBride
Former Federal Prosecutor
Let's have Congress pass rules for all 200 of these cases, have the habeas cases heard for all 200 in the same manner.

RAY SUAREZ: Well, today, you heard the attorney general calling on Congress to step in and draft laws that help codify a process that will stand up against scrutiny and appeal.

What do you think of that suggestion?

NEAL KATYAL: I think it's a good idea in general for Congress to be involved. That's the system our founders gave us, a system that puts Congress in the driver's seat.

Having said that, I think that the administration bears a real responsibility to act as grownups in the situation, and not the way they have historically approached these things. I mean, we're seven years into 9/11. The Supreme Court has had five different issues before it involving the war on terror. Each time, the administration has lost, which is an astounding thing over the course of American history.

In past armed conflicts, presidents have lost something like two times. It's kind of like failing a class at Yale. You really have to try if you are the president to do so in a time of armed conflict. And they repeatedly have done so.

And, so, if we are going to have legislation now, I think it's got to be done really gingerly and very carefully to make sure that it will stand the test of time, and not, like the last -- right before the last election, in 2006, when they rushed this military commission act to the floor, which the Supreme Court struck down last month, we have got to do it very carefully.

RAY SUAREZ: Do you join the attorney general in looking to Congress, Andrew McBride?

ANDREW MCBRIDE: I do.

I thought it was an excellent speech, a very candid speech. Yes, we are disappointed by the Boumediene decision, but we intend to abide by it. And, then, I think a very important point, that the courts cannot create the rules for all 200-odd of these habeas corpus proceedings, that someone, in advance of their conduct, has to set down the rules, I mean, that itself is a fundamental principle of due process, that the rules to a particular tribunal are set down in advance, and both sides know what they are.

And that is what the attorney general is saying. Let's not have Judge Hogan and other judges on the district court disagree about what the rules should be and get different results. Let's have Congress pass rules for all 200 of these cases, have the habeas cases heard for all 200 in the same manner.

And then I think it is inevitable, after Boumediene, that the Supreme Court, one more time, will have to review the procedures for deciding if someone is an enemy combatant.

RAY SUAREZ: Andrew McBride, professor Katyal, gentlemen, thank you both.

ANDREW MCBRIDE: Thank you.

NEAL KATYAL: Thank you.