As Secretary of State Condoleezza Rice concludes a visit to Iraq and the UK, amid increasing opposition to U.S. policies, and with the Supreme Court challenge to the Guantánamo military tribunals pending a final decision, the military commission hearings are resuming here this week.
Four out of the ten prisoners charged with war crimes and referred for prosecution will come before the commission: Abdul Zahir (35) from Afghanistan, Ali Hamza al Bahlul (39) from Yemen, Omar Khadr (19) from Canada, and Binyam Ahmad Mohamed (27), who was born in Ethiopia but moved to the UK in his teens.
The last time I observed this commission in person was in November 2004. At the time only four prisoners were charged and Salim Ahmed Hamdan’s hearing was scheduled to start but was abruptly halted when a federal district court judge held that the use of military commissions to try detainees violated the U.S. Constitution and international law.
The Supreme Court heard oral arguments in Hamdan v. Rumsfeld last week. A decision is expected by June 2006 on whether this military commission, established by President Bush in November 2001, is duly authorized under Congress’s Authorization for the Use of Military Force; the Uniform Code of Military Justice; or through the “inherent powers” of the President as commander in chief.
Additionally and perhaps more critically the Supreme Court will decide whether Mr. Hamdan and other similarly situated prisoners can even seek enforcement of their rights under the Geneva Convention from Article III courts such as the Supreme Court and other lower courts established by Congress.
The Court’s ruling will be the first judicial examination of the 2005 Detainee Treatment Act, which includes the Graham-Levin Amendment stripping U.S. courts’ jurisdiction over almost any challenges by Guantánamo detainees regarding their detention.
Just days before Hamdan reached the high court, the U.S. military introduced a new commission instruction that could bar the admission of coerced confessions. The move seems like like a desperate attempt to continue to defend the extra-judicial commission, and perhaps even to influence the Justices’ deliberations.
But this new rule, and several others, fail to guarantee an independent trial court, or to provide impartial appellate review. And though they may prohibit the use of evidence obtained through torture, they contain few safeguards to make that prohibition meaningful and they do not exclude evidence exhorted under coercive interrogation techniques that fall short of torture but are still prohibited under the Convention against Torture.