(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.
Tags: Guantanamo Dispatch
July 31st, 2008 at 1:46 pm
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.
July 31st, 2008 at 2:45 pm
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.
July 31st, 2008 at 10:23 pm
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.
July 31st, 2008 at 11:09 pm
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.
August 1st, 2008 at 8:03 am
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.
August 1st, 2008 at 8:10 am
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.
August 1st, 2008 at 11:22 am
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.
August 1st, 2008 at 3:14 pm
I just called McDonalds HQ. Guantanamo has no McDonalds.
August 1st, 2008 at 4:58 pm
Terry,
Re: McDonalds. Yes they do. I was there.
August 1st, 2008 at 5:39 pm
Also, Terry, if you look on the military’s JTF GTMO website, it says:
http://www.jtfgtmo.southcom.mil/community/clubs/clubs.html
“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.”
August 2nd, 2008 at 2:14 am
I too disagree with the ACLU’s to fight for the right to bear arms. In reading the documentation leading up to the origination of the Bill of Rights, it can be argue that the right to bear arms, were for the benefit of citizen to protect themselves from a morally bankrupt government. Of course that would be considered terrorism y this government, and the you too could enjoy the hospitality of Guantanamo. This administration is an embarrassment o everything the Founding Fathers held dear and encoded in the Constitution. President Bush has violated his oath of office by not protecting the constitution, by virally attacking it, trying his best to dismantle it piece by piece. He vision of executive privilege is an anathema of everything George Washington believed in and fought for. Mr. Ford you really need to go to the history section of the library and spend a couple of weeks reading on the history of this once great nation. We can regain our stature, but only after we return to our basic principles of the Declaration of Independence.
“But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security’s”
Thus we in this country we must VOTE to throw off this Government and change the disastrous path we have been sent on by those presently in charge.
August 2nd, 2008 at 8:40 am
There have always been two considerations for the ACLU’s policies on the 2nd Amendment:
1-It “was” settled law. Amazingly, so-called “settled law” was supposed to remain intact under a Roberts Court–at least thats what he told Congress. Legislating from the bench? The Right-Wing does it better….
2-Like so many other areas, the ACLU only has so many resources to devote to so many things.
Although Constiutionally covered, Public Domain issues are not commonly addressed by the ACLU–there are only so many resources to go around and many other groups are devoted to that as well.
Many, like myself that see that as problematic–do not throw out the proverbial “baby with the bath water” because it is not well addressed by the ACLU–so I never clearly understand why the Second Amendment crowd completly shuns the ACLU at the expense of all the other rights protected?
If the Second Amendment alone is your concern–bury your heard in the sand, join the NRA and be done with it.
Its like so many other things, its easier to bitch about what we see wrong without actually becomming involved–like joining a local program committee and making that issue a priority within your local ACLU organization–you’d be surprized how many gun owners are already in the ACLU….
But you,re right–dont try–criticize and then act as if you personally werwe part of the “big gun case”.
August 2nd, 2008 at 8:50 am
Our allies wait and pray that once again the US will regain its status as the leader of the free world rather than a nation of kangaroo courts, prosecutions of dubious merit, questionable evidence, and preconceived guilt in order to hide its own crimes.
August 2nd, 2008 at 8:01 pm
“A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.”
The second amendment has never been infringed - the one qualifier is that a militia is necessary to the defence of free States. Since that qualifier has been violated by the government of the “free state” there is no right to keep or bear arms.
The United States is in no way a “free state.” It is a state which, somehow, has developed an old-timey, puritanical, don’t allow the people to think for themselves sort of attitude. Your nationalism is only matched by the Germans pre-WWII, and they were made do it by overt threat. You are the apathetic who allow it to happen.
The ACLU is the last bastion of freedom in your country, the only ones who will speak out against those that would subvert “the land of the free.”
I agree with the right to keep and bear arms - and I’m in a country where it isn’t allowed, but at least the socialist party can march down the main street of the capital and not be lynched. The anarchists can post signs and not be beaten and the conservatives can say that they don’t want the foreigners here anymore without being killed. That’s first amendment goodness. Tasty - too bad you don’t have it there.
August 3rd, 2008 at 7:06 pm
There is absolutely no question that the ACLU is the last bastion of freedom and justice in America. Politicians have failed to protect the Constitution, and Guantanamo Bay, wrongful imprisonment and heinous tortures are the result, as is the ongoing snooping into private calls, private lives, and private health records. Everyone in Congress and everyone in America (save for children) should see the horrific photo of the prisoner at Abu Graib who is lying on the floor with his testicles and penis cut off in cold blood, having his arm tugged up by a soldier. This picture shows that many of the tortures other than water boarding, (itself horrifying enough - being repeated drowning), are even more horrifying in comparison.
Jared’s comments on the 2nd amendment are completely off course in the discussion on torture and Guantanamo Bay.
However, veering off course, Jared is right that the 2nd amendment needs to be amended. The streets, schools, colleges and homes of America have become slaughter houses due to the ubiquitous availability of guns.
In the 1950’s there were in England (with a population of about 50 Million) about 300 murders a year, the vast majority not involving guns. The police did not carry guns, and neither did private citizens. At that time in New York (with a population of 10 million) there were about 3000 murders - most of which did involve guns. The figures must be even worse today.
While huntsmen, properly screened for a criminal record and mental stability, could reasonably
be licensed to carry hunting rifles, which would only be loaded at the site of the hunt, there is absolutely no need for anyone else, other than policemen and security guards to carry guns of any kind. As most people believe, the second amendment, was for the formation of militias to defend their individual States in the event that the president tried to seize dictatorial power. An amendment banning all guns except for the police and the armed forces when in training or in battle and huntsman as above noted, would be a tremendous boon to the nation. Special exceptions could be made on application and under controlled circumstances, for persons whose lives have been threatened or who have reason to believe that they are likely to be attacked and.
killed.
The belief that guns, especially hand guns and machine guns, make anyone safer, is completely
false. On the contrary, they make everyone, including the police, much less safe. As for making a law which restricts the purchase of guns to one a month, this is downright idiotic!
Once the second amendment has, itself, been amended, guns could be gradually reduced throughout the nation. Inevitably, the mortality would gradually drop.
Sincerely,
Ian
August 3rd, 2008 at 7:07 pm
Funny how one comment about 2nd amendment and guns hijacked the whole thread. Congrats, Jared, good use of “framing the argument”.
Let’s get back on point here. The Government is committing crimes, and the Government’s refusal to fight to put Mr. McFadden on the stand says one thing to me: The Government never had a case, Mr. McFadden is just a shill, and this entire “show trial” is the result of illegal torture and interrogation techniques which can’t stand the light of day, at least in a Federal Court. Luckily it seems Hamdan is a citizen and has a real judge, a real lawyer, and real protections of the bill of rights. The government will have to rely hereafter on convictions in the dim dank kangaroo military courts, where the use of thumbscrews and waterboarding is more profitable in pushing forward their false and completely comic-book-like “war-on-terror”. All of us, even a tough and he-man like Don Rumsfield, would confess to anything under torture. It’s an abomination and it must stop, before the Military Courts execute every innocent torture victim to cover-up their crimes.
September 2nd, 2008 at 11:27 am
Glad to help
November 6th, 2008 at 9:29 pm
I find it amazing that Mr. Cree believes that allowing only police to own guns is desireable. Look at the ACLU cases - many have to do with police intimidation using guns against the unarmed.
Mr.Ford’s original post was off-base. Choosing to use limited resources to defend other rights does not make the ACLU irrelevent. All those rights are under serious attack. We just have to look to other organizations to defend property and firearms. Many of us support more than one organization.
“When guns are outlawed, only the government will have guns.”…Edward Abbey (1927-1989)
December 2nd, 2008 at 2:55 pm
But they are not defending my rights. I have no rights that protect my right to work. I have not rights that protect me from discrimantion. I am Welsh and we are a very small minority.