Key elements of the Bush Administration’s anti-terrorist detention policies appear to be unraveling, according to human rights and legal advocates.
In the past two weeks alone, a military judge has disqualified a Pentagon legal official from participating in the Guantanamo war crimes trial of Salim Ahmed Hamdan, a former driver for Osama bin Laden, because he had pushed for "sexy" cases that would capture attention. The U.S. government dropped all charges against the man alleged to have been the "20th hijacker" in the September 11th 2001 terrorist attacks because it is believed his military commission trial would expose evidence obtained through torture. And, in a totally unexpected move, Al Jazeera cameraman Sami Al-Haj was released from Guantanamo after six years in detention without charge.
In the Hamdan case, the judge ruled that the military must appoint a replacement to Air Force Brig. Gen. Thomas Hartmann, the legal adviser to the military tribunals, before the Yemeni’s scheduled trial in June.
Hamdan is charged with supporting terrorism and faces life in prison if convicted. His trial would be the first U.S.war crimes trial for a Guantanamo prisoner.
The dropped charges were against Mohammad al-Qahtani, who has been held at Guantanamo Bay since 2002, following his detention in Afghanistan. In February, he was charged with conspiracy, terrorism, and murder in violation of the laws of war, among other offences.
The Center for Constitutional Rights (CCR), which has provided many of the lawyers representing Guantanamo detainees, said it believed the charges against al-Qahtani had been dropped because he had been tortured. "The government's claims against our client were based on unreliable evidence obtained through torture at Guantanamo," the group said.
"Using torture to string together a web of so-called evidence is illegal,
immoral and cannot be the basis for a fair trial," the CCR added.
Defense lawyers say Hartmann rushed proceedings in hopes of speedy convictions and sought to improperly influence who was prosecuted, selecting cases based on their potential to sway public opinion of the process.
At an April 28 hearing on the issue, former chief prosecutor Air Force Colonel Morris Davis testified that Hartmann had pushed for "sexy" cases that would capture attention.
Colonel Davis resigned when he was placed directly under the command of the General Counsel of the Department of Defense, a principal author of the military commissions system.
As legal adviser, Hartmann was charged with providing counsel to the official who makes key decisions such as whether to approve charges against individual detainees.According to Clive Stafford Smith, a British lawyer who represents a number of Guantanamo detainees, Hartmann “was basically telling (Col. Morris) what to do and saying, ‘Look, there’s an election coming up. It’s in November. We’ve got to have prosecutions now against the high-profile guys. It doesn’t matter if you’re not ready to prosecute them, but we need Khalid Sheikh Mohammed on trial because of electioneering’.”
Prosecutors deny that Hartmann never subjected subordinates to unlawful influence.
While the judge’s ruling directly affects only Hamdan's case, lawyers for the Yemeni detainee said it raises questions about the validity of charges that Hartmann was involved in preparing against other suspects at Guantanamo.
A case currently before the Supreme Court -- Boumediene v. Bush – is challenging the legality of military commissions under the constitution. The Court is expected to rule in the next two months.
Hamdan has already become part of American jurisprudence. In 2005, he brought suit against then Defense Secretary Rumsfeld. The Supreme Court ruled in 2006 that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.