Above: Illustration, M.V.de Fereal's "History of Inquisition." XIX. The image depicts waterboarding.
Here we go again. After a recess since last May, it’s again pretrial motion time in the slow motion trial of five Guantanamo detainees charged with plotting the 9/11 attacks.
On the immediate agenda are efforts by the defense to overturn a ruling that anything the detainees say before the military commission about what happened to them in CIA custody would be classified as “Top Secret” and shrouded in secrecy.
New ground rules put forward by the government say that the accused are forbidden to talk about their “observations and experiences” while in CIA custody, including the “enhanced interrogation techniques” to which they were subjected.
Defense attorneys are also objecting to the 40-second delay in transmitting what goes on in the court to reporters and members of the public beyond the soundproof perimeter, permitting the military to censor “classified information” including claims of torture.
Army Col. James Pohl, the military judge presiding over the proceedings, has shown no willingness so far to consider a discussion of the treatment given detainees, making it likely that the fact that Khalid Sheikh Mohammed had been waterboarded 183 times will be considered “irrelevant” in his death penalty trial.
As military commissions continue to grind their way into the annals of degraded justice, there are two recent developments suggesting that the criminal justice system still has the capacity to self-correct where “national security” cases are concerned.
Earlier today, a three-judge panel of the US Court of Appeals for the DC Circuit overturned the “war crime” conviction of Salim Hamdan by an earlier military commission.
Hamdan, the plaintiff in the 2006 Supreme Court case challenging military commissions, Hamdan v. Runsfeld, had served as a driver for Osama bin Laden between the years 1996-2001.
It was not a “war crime” under international law to give such material support for terrorism. And before Congress passed the Military Commissions Act of 2006, “material support” cases that do not rise to the level of war crimes were outside the purview of military judges.
Above: A screenshot from Hamdan's charge sheet. Click to read the document.
“Indeed,” wrote Judge Brett Kavanaugh,”the Executive Branch acknowledges that the international law of war did not – and still does not – identify material support for terrorism as a war crime.”
Hamdan was subsequently tried in one of the first dysfunctional military commission trials, and was convicted in 2008. He was sentenced to five and a half years, shorter than the time of his incarceration in Guantanamo.
He is now a free man in Yemen, with his conviction struck down. The judges reasoned that since there was no such “war crime” when Hamdan committed his offense, the verdict against him cannot stand.
The other recent major due process victory takes us back to a surreal event that occurred in February 2003 in Moscow, Idaho on the campus of Idaho State University. At four in the morning, while students were asleep, 120 FBI and INS agents, fully armed and in riot gear, were flown into a nearby airport on a giant military C17 cargo plane. A half hour later they were mounting a military-style raid on a campus dorm.
They pounced on their target, a graduate student in computer science from Saudi Arabia named Sami Omar al-Hussayyen. They also rounded up some 20 other foreign students who had the misfortune to either know the suspect of have some minor immigration irregularities.
The raid was described by Idaho governor Dirk Kempthorne and then-Attorney General John Ashcroft as a pre-emptive move against “a terrorist threat to Americans that is fanatical, and it is fierce.”
Among those who were taken into custody three weeks after the raid was a star football player at Idaho State, Abdullah al-Kidd.
Al-Kidd, born Lavoni Kidd in Kansas, was a convert to Islam who was arrested by the FBI at the airport as he was leaving with a round trip ticket to study in Saudi Arabia. He was held for 16 days under harsh and demeaning conditions. He was never charged with anything, but was instead detained as a “material witness” who would presumably be brought to give evidence in al-Hussayyen’s terrorism trial.
The material witness statute had been enacted by Congress in 1984 to give the government the opportunity – under very narrow circumstances – to secure the testimony of witnesses who might otherwise be seen as flight risks. The idea was that such people could be held for a very short time, testify in court, and then go free.
But after 9/11, the Justice Department began to use the material witness statute to hold “terrorism suspects” indefinitely without having probable cause linking them to a crime. Scores of innocent people were detained for long periods of time under this abuse of the material witness power. Because they were regarded as terrorist suspects, they were often mistreated and humiliated in prison.
So it was with Abdullah al-Kidd. He was held, shackled, in a high security facility with the lights on 24 hours a day, stripped naked in front of other inmates and guards and frequently subjected to body-cavity searches. After he was released, he was made to relinquish his passport, and for the course of a year, had to limit his movements and live with his in-laws as his scholarship was withdrawn and his marriage fell apart.
And he was never asked to testify at the al-Hussayyen trial or told that his testimony would not be required. That trial turned out to be a major embarrassment for the government, as a federal jury found that Sami al-Hussayyen’s actions as a web master fo Muslim groups were protected by the First Amendment.
The FBI and American judicial system would soon hear much more from Abdullah al-Kidd.
The ACLU took up his case to oppose the government’s abuse of the material witness statute, which was increasingly being used to preventatively detain (mostly) Muslim men.
From 2005 until 2012, Abdullah al-Kidd v. John Ashcroft, et al. wound its way through the courts.
In the process, it was revealed that the FBI had misled a magistrate to get the warrant they used to arrest al-Kidd at the airport. They did not tell the court that he was an American citizen with a child and strong family and community ties, but instead presented him as a Saudi citizen trying to flee the country. They lied when they said he had purchased a one-way ticket. And no mention was made of the fact that al-Kidd had been cooperative with the FBI when agents asked to speak with him in the aftermath of al-Hussayyen’s arrest.
After six years, the US Supreme Court heard arguments in al-Kidd v. Ashcroft and ruled that the former Attorney General had immunity from al-Kidd’s lawsuit.
But the effort to obtain justice for Mr. al-Kidd had not reached a dead end. On September 27, 2012, federal Judge Edward Lodge in an Idaho court reaffirmed a finding by the US magistrate who had granted the FBI the warrant to arrest al-Kidd.
Stating that the FBI affidavit “evidences a reckless disregard for the truth,” Judge Lodge ruled that al-Kidd had been wrongfully imprisoned and his case could go to trial to see if the government has “willfully misused the law against him.”
The ACLU press release reporting al-Kidd’s victory stated:
As Justice Ginsburg wrote in her concurring opinion in last year’s case against Ashcroft, Mr. al-Kidd’s ‘ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.’ Mr. al-Kidd’s victory last week is an important step towards holding the government accountable for its abuses of power, and preventing them from ever happening again.