At the onset of my representation of Mr. Hamdan, I was deeply troubled by the fact that to ensure that Mr. Hamdan would plead guilty as planned, the Chief Prosecutor's request came with a critical condition that the Defense Counsel was for the limited purpose of "negotiating a guilty plea" to an unspecified offense and that Mr. Hamdan's access to counsel was conditioned on his willingness to negotiate such a plea.[ . . . ]
Although I was permitted to continue to meet with Mr. Hamdan subsequent to his refusal to negotiate a guilty plea, the decision to charge two other detainees expected to plead not guilty instead of Mr. Hamdan in combination with the flat refusal to give Mr. Hamdan a speedy trial caused me to fear that the only way Mr. Hamdan would see a Commission was if he agreed to plead guilty. After four month’s in solitary confinement Mr. Hamdan was on the verge of being coerced into a guilty plea or deteriorating mentally to the point that he would be unable to assist in his defense if he ever came to trial.[ . . . ]
At Mr. Hamdan's request and out of belief that I had no other options left in April 2004, I filed and have maintained since, a petition for Writ of Mandamus and or Habeas Corpus challenging both the lawfulness of procedures and the jurisdiction of the proceeding.
Initially the Department of Justice argued that court should abstain until the Supreme Court determined whether Secretary of Defense Rumsfeld had by virtue of holding Mr. Hamdan and other detainees in Guantanamo Bay successfully avoided Habeas challenge altogether.This was the Rasul case, in which the government attempted to argue that Gitmo was not US-controlled territory, and therefore beyond the reach of the judiciary.
After the Supreme Court determined that detention in Guantanamo Bay was not a bar to Habeas Corpus, the Prosecution hastily referred a single charge of conspiracy against Mr. Hamdan. Based on the decision to charge Mr Hamdan with conspiracy the Department of Justice now argues that the Federal Courts should defer to the Commission. The use of a Military Commission to try Mr. Hamdan on a charge of conspiracy, however, exceeds assurances made to this Committee that only war crimes would be heard by the Commissions.Note that this is not a statement that treaty obligations restrict the government's ability to charge Hamdan. Rather, it is mentioned to suggest that if conspiracy appeared in any of these sources as a war crime, it would tend to enable the government to bring that charge.
Colonel Winthrop’s definitive treatise on Military Law explicitly states that crimes of intention are not within the jurisdiction of a Military Commission. Conspiracy is not listed as a crime in any of the treaties governing the law of war. The Nuremburg Tribunals rejected conspiracy as a war crime cognizable against minor actors. Finally, just this year the International Committee for the Red Cross published its exhaustive study of the common law of war, and it does not list conspiracy.
Swift then runs down an extensive list of reasons why he believes a fair trial is impossible under the commissions as constituted. Included among these:
[ . . . ] the prosecution has never disclosed the conditions under which the interrogations have been made. Public statements by General Miller, the former Commander of the Joint Task Force Guantanamo, indicated that the lack of evidence surrounding the interrogations in questions was intentional effort to avoid preserving evidence that may be used by Defense Counsel.Concealing evidence that favors the defendant and allowing testimony extracted by torture.
[ . . . ] the military commissions do not prohibit testimony obtained by torture. Indeed, the military commission rules permit the introduction of tortured testimony without notice of how it was obtained.
Finally, the oddest thing, from Swift's closing lines:
As of the end of July 2005, the Office of the Chief Defense Counsel will be reduced to only one full time defense counsel and incapable of representing the handful of individuals currently before commissions. The Military Commission process, regardless of how the federal courts rule, is an exercise in futility. It tries to reinvent a vibrant system of law, the American court-martial, without considering its fundamental features: balancing of rights of defense and prosecution, and compliance with international law and the United States Constitution.