"It's My Country, Too."

(Originally posted on Daily Kos.)

On Wednesday, we discovered that the government may actually be more intent on covering up its own criminality than in establishing Hamdan's. Or perhaps the prosecution simply recognizes that an acquittal is virtually inconceivable in any military commission trial. Whatever the reason, the government demonstrated that it would rather lose the testimony of a key witness than allow Guantánamo's secret interrogation regime to be exposed to public or judicial scrutiny.

At issue was whether Robert McFadden, a Special Agent of the Naval Criminal Investigative Service — the only government witness who purports to have heard Hamdan reveal that he swore bayat, or allegiance, to Osama Bin Laden (Hamdan says he didn't) — would be permitted to testify. But it was soon apparent that far more was at stake than the testimony of a single witness. The dispute threatened to expose a very different Guantánamo than the one portrayed in the government's case.

Hamdan and his lawyers have long contended that the prosecution's Guantánamo — where polite, well-spoken FBI and military investigators bring McDonald's French fries to detainees and conduct professional, non-coercive interrogations — is at best a small part of the story. Wholly absent from the government's case are agents of "unnamed" agencies who wake detainees in the dead of night and apply interrogation techniques long banned by civilized nations.

For years, Hamdan's lawyers have demanded that the government turn over records not only of the polite interrogations conducted by polished prosecution witnesses, but of all interrogations of Hamdan, so that the court could properly evaluate whether his statements were provided voluntarily. Hamdan alleged in earlier proceedings that he himself had been exposed to sleep deprivation and even sexual humiliation by a female interrogator — allegations that government lawyers ridiculed. But Hamdan was telling the truth.

Although the government has had five years to collect these critical records, Hamdan's lawyers received many of them just days before trial, and others not until after the trial had begun — a truly shocking violation of discovery rules made all the more remarkable by the stakes of this case. We learned today that one of those documents includes a female interrogator's account of her sexual humiliation of Hamdan. Others describe his being woken repeatedly in the night and moved between cells — including the night before his interview with Special Agent McFadden. On Monday, the military judge had instructed the government that, as sanction for its failure to provide those critical documents in a timely manner, McFadden would be barred from testifying — unless the government could demonstrate convincingly that Hamdan had not been mistreated.

But the government did no such thing, nor did it really even try. It did not present a single witness who was involved in Hamdan's late-night interrogations, or even in his detention. Quite simply, the government preferred to risk losing a witness who, in an ordinary proceeding, would be deemed absolutely critical to its conspiracy charge against Hamdan, than be forced to put CIA and military intelligence officers on the stand to testify about their routine abuse of detainees.

Although we remain in the dark about the damning details of Hamdan's treatment by intelligence officers, we did hear some of the more prosaic details of Hamdan's camp disciplinary record, as detailed meticulously in the "military police desk blotter." Hamdan, we learned, had become "aggressive" and "outraged" and had used "derogatory language towards guard staff" on one occasion when he was denied a soccer ball — presumably when he was living in communal housing prior to his transfer into solitary confinement. On a few occasions Hamdan was discovered with "contraband," begging certain obvious questions and reminding me, unavoidably, of this. One entry noted a "positive behavior status report" (evidently a good thing) for which Hamdan was rewarded, heartbreakingly, with two family photographs. Even Guantánamo's small kindnesses somehow manage to invoke its cruelty.

Notwithstanding their complete failure to explain why Hamdan would have been deprived of sleep the night before a critical interrogation, government lawyers insisted that there should be no sanction: to exclude testimony, the prosecution contended, would be to "cast sort of a dark cloud over the agents and those who worked with the detainees." But this is exactly backwards. The "dark cloud" has been hovering over Guantánamo for years. It was Donald Rumsfeld who, as early as December, 2002 approved the use of "hooding," "exploitation of phobias," "stress positions," sleep deprivation, and other inhumane tactics for use on detainees here. It was the government that turned the Guantánamo detention facility into a virtual laboratory for cruel and coercive interrogations — and that now insists on being able to prosecute detainees while keeping that cruelty under tight seal.

It was left to one of Hamdan's civilian lawyers, Seattle attorney Harry Schneider, to sum up the feeling of many observers of this sad spectacle. "It's not a happy day," Schneider argued, when Mr. Hamdan's testimony must be considered more credible than the testimony of government agents. "It's my country, too."

At Guantánamo Bay, sometimes we need that reminder.

View comments (19)
Read the Terms of Use

Jared Ford

The ACLU is ruining this country. You all should be ashamed of yourselves. You are creating a nation of whiners. Where were you when our second amendment rights were being violated in D.C. Protect the first amendment rights all day long but when it comes to the second you are nowhere to be found. Pick and choose what ever goes with your agenda.

Hawaiian style

GO ACLU. YOU are a light in the Bush blackout.

If you don't like what the ACLU covers send them more money so they can hire more lawyers.


Funny that Mr. Ford, for lack of an arguement on this issue, uses ad hominum attacks. He seems to find nothing wrong with flouting the constitution and human rights when it's people he dislike and thinks it's being a "whiner" to voice disapproval of human beings being tortured. Then he whines about the second amendment (of course, ignoring the "For the establishment of a well-regulated militia,..." part). Um, I don't know about you, but I think it's messing up priorities to priviledge one amendment over others combinded.

The Chemist

Hey, defense of the first amendment is not just a tiny blip on my radar. They ACLU has made the decision NOT to defend the second amendment, and in my opinion it IS inconsistent with their other policies.

HOWEVER, and this a big HOWEVER: Anyone who defends ANY of my rights deserves praise. The fact that they don't fight AGAINST gun rights means that while I disagree with their decision, it is far from a vile offense.

As for a nation of whiners, and I honestly mean Mr.Ford no offense here, I believe he would not consider it mere whining if he were in Guantanamo as a prisoner himself.

Ticked off Citizen

It's a sad day for this country that was founded on the principle of law. I would love to see what the founding fathers would say to what is going on in Guantánamo Bay. As for the first post, Jared... ask yourself why they don't have this prison in the United States. Also, ask yourself, do I understand why this nation was founded? My guess is, you are too uneducated to understand that this country was founded on law and was meant to change the way things were done in the rest of the world that we are now repeating over again.

El Bravo

Jared Ford,

I guess you dont like lawyers. I guess you dont like over half of our Presidents. If so, you are UnAmerican. Go ACLU, the real Americans.


Re-Jared Ford, "Pick and choose what ever goes with your agenda".

Many if not most organizations focus on certain issues and don't emphasize others. How are they "ruining this country" simply because you happen not to agree with their position on the Second Amendment and gun control? Or is it that you don't agree with the rest of the bill of rights and the ACLU's defense of it?

I have long been an ACLU member, and over the years have been active with ACLU at the chapter level. I don't agree with every single position they take. Many members don't. My experience with the organization is that it is a democratic one, with policy shaped by its members and an elected board of directors. ACLU is not a monolithic organization, even though perhaps its national leadership would prefer it to be.

If you disagree with the organization on its interpretation of the Second Amendment, get involved at your local level. If you're sincere, you'll be welcome there. If you're not, they'll see that too. I suspect you're not though.


I just called McDonalds HQ. Guantanamo has no McDonalds.



Re: McDonalds. Yes they do. I was there.

Suzanne Ito, ACLU

Also, Terry, if you look on the military's JTF GTMO website, it says:


"McDonald’s is located next to Navy Exchange and across Sherman Ave. from Cuzco Barracks. It is open from 5:00 a.m. to 11:00 p.m. seven days per week. For more information call 011-53-99-3797."


Stay Informed