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Hamdan's First Military Commission

Jamil Dakwar,
Director, ACLU Human Rights Program
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November 7, 2004

After staying less than 24 hours in Guantánamo Bay you start to be more appreciative for your freedom of movement while off the Naval Base. As representatives of human rights groups, however, we agreed to the military 'ground rules' that limit our freedom of movement here, in order to observe the trials of persons who are denied their basic human rights. Only four of the 550 Guantánamo detainees were 'privileged' so far to face charges before a Military Commission. This Military Commission was created by a Presidential Order signed in November 2001. The order essentially creates an extra-judicial system for the "detention, treatment and trial of certain non-citizens in the war against terror," in violation, we believe, of United States and international law.

This week the Military Commission will be hearing the oral arguments on more than a dozen motions that were submitted by Lt. Cmdr. Charles Swift, the military defense counsel who was appointed to represent Mr. Salim Ahmed Hamdan.

Hamdan, a 35-year-old citizen of Yemen, was charged in July 2004 with "conspiracy to commit terrorism." He responded in 1996 to a call to travel to Tajikistan to aid the Muslims there in their fight against the communists. When his mission to fight against the communists was aborted he accepted a job as a truck driver on one of Bin Laden's farms in Afghanistan. He got married and later became Bin Laden's chauffeur. Hamdan denies being member of Al-Qaeda and that he had been involved in hostilities against the United States. According to his attorney, at the time of his capture, he was traveling alone and was not part of a belligerent force, and was seeking to flee hostilities in Afghanistan. In an affidavit that was submitted to the military commission Hamdan said that he was tortured and abused by the American interrogators in Afghanistan. In December 2003, he was separated from other detainees and since then has been held in solitary confinement.

While some of the motions that will be argued by Hamdan's defense counsel this week are similar to those that were argued last week by David Hicks's defense counsel, the Commission is obligated to hear the full individual arguments of each case. By filing these motions, Hamdan's defense will be trying to challenge the legality and the competence of the Commission to hear his case. The following are some of arguments that the Commission will start to hear on Monday afternoon:

  • Failure to grant Hamdan a speedy trial in violation of Article 10 Uniform Code of Military Justice and Article 103 of the Third Geneva Convention. (The United States signed and ratified the Geneva Conventions in 1955)
  • The Presidential Military Order (which created the Military Commission) illegally intrudes into Congress' Constitutional duty to make and enforce the law.
  • The Presidential Military Order illegally discriminates against aliens in violation of the Equal Protection clause of the Constitution and 42 U.S.C 1842.
  • The Commission is improperly constituted under Common Article 3 of the Geneva Conventions which guarantees all persons the right to have their cases heard by a regularly constituted court. The Commission does not satisfy local and international required protections and therefore cannot be considered regularly constituted.
  • The Commission lacks personal jurisdiction over Hamdan because he is civilian and not within the jurisdiction of the Commission.
  • The charge of "conspiracy to commit terrorism" is not a valid offense under international criminal law. The sole charge against Hamdan is not within the Military Commission's subject matter as established by the U.S. Constitution and federal statutes.

Tomorrow I hope to report on how those arguments were received. For now, I wanted to briefly mention some historical facts about Guantánamo Bay, which I learned over the course of my last day on the island of Cuba.

In 1903, the new Republic of Cuba leased to the United States an area of 28,817 acres (about 45 square miles) of land and water. The terms of the lease were stipulated in three documents — two agreements and a treaty. The first lease agreement mandated that "the area must be used only for a coaling and naval station." In a supplementary agreement that was also signed in 1903, the United States contracted to pay Cuba the annual sum of $2,000 in gold. Later in 1934, a treaty signed between the two countries gave the United States a perpetual lease on the area which could be voided only if the U.S. abandoned the area or by mutual agreement between the two parties. Since then this part of Cuba has been (at least de facto) considered an integral part of American territory where the United States exercises essential elements of sovereignty. However, since Fidel Castro came to power in early 1960s, Cuba has refused to cash the American annual checks and has persistently objected to the American presence on Cuban soil.

Long before the United States acquired control over Guantánamo Bay, the place was noted as a one-time haven for pirates from hurricanes, the authorities, and other pirates. Ironically, the United States is now using Guantánamo as haven from impartial judicial review and international scrutiny and norms over the treatment and the prolonged illegal detention of hundreds of non-United States citizens.

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