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"It's My Country, Too."

Ben Wizner,
ACLU Speech, Privacy, and Technology Project
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July 31, 2008

(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.

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