NEW YORK – The American Civil Liberties Union will monitor the military commission hearing of Yemeni national Salim Ahmed Hamdan at Guantánamo Bay on Wednesday. Hamdan, alleged to have served as a personal driver and bodyguard for Osama bin Laden, will appear before a U.S. military judge who will determine whether the commission has the authority to hear Hamdan’s case. Hamdan is only the third Guantánamo detainee to face charges before the commissions, which Congress reinstated in 2006 after the U.S. Supreme Court struck down, in Hamdan’s own case, the system established by the Bush administration.

“The military commission hearings at Guantánamo Bay continue to be inconsistent with both constitutional and international law, and so it is imperative that we continue to vigilantly monitor them and expose their fundamental flaws,” said Anthony D. Romero, Executive Director of the ACLU. “We will continue to do our part to fight for the U.S. government to act in a way that is consistent with America’s historic commitment to due process and the rule of law.”

The U.S. government has charged Hamdan with conspiracy and providing material support for terrorism, but he maintains that he had no involvement with any terrorism-related activity.  In June 2007, military judges threw out the government’s charges against both Hamdan and a second Guantánamo prisoner, Canadian national Omar Ahmed Khadr, because the judges found the commissions lacked the authority to prosecute them.  According to the judge in each case, neither Hamdan nor Khadr had been previously designated an “unlawful enemy combatant” as required under the Military Commissions Act signed into law by President Bush in October 2006.  After the government appealed, a newly established U.S. Court of Military Commission Review – a panel of three military officers appointed by the Pentagon – reinstated the charges in September, deciding that the military commission judges themselves have the authority to make that designation. The hearing in Hamdan’s case on Wednesday will mark the first time that the government has presented evidence in any military commission proceeding about the basis for its charge that a Guantánamo detainee is as an “unlawful enemy combatant.”

Hina Shamsi, staff attorney with the ACLU’s National Security Project, will attend Hamdan’s military commission hearing.

“Over the last three years, the track record of the military commissions has been abysmal and any hope that the Bush administration would apply fair procedures that lead to fair results has been repeatedly dashed,” Shamsi said. “It’s a positive step that the government’s evidence is finally being put to the test in Mr. Hamdan’s case, but the real question will be whether the proceedings take place openly and with a level playing field for the defense and the prosecution.  Anything less violates the tenets of due process that are the hallmark of the American legal system.” 

The openness of military commissions proceedings was called into question late last week when news reports revealed that the military judge in the Khadr case had agreed to prosecutors’ requests to keep the identity of government witnesses a secret. 

“At every one of these hearings, it’s not just the individual on trial, but the entire military commissions system itself,” Shamsi said. “A second-tier system of lesser justice will never be seen as legitimate, and is exactly the opposite of what a successful national security strategy requires.” 

The ACLU, one of five organizations that have been granted status as human rights observers at the military commission proceedings and which has observed the tribunals since they began in 2004, has repeatedly called on Congress and the Bush administration to shut down the U.S. prison at Guantánamo Bay. In May, the ACLU endorsed legislation introduced by Senator Tom Harkin (D-IA) that would end the practice of indefinite detention without charge or for detainees who have been held for as long as five years without knowing the reason for their detention. It would also provide a push for the government to finally charge those detainees it believes are guilty of crimes against the United States.

Additional information about the ACLU’s involvement surrounding the detention of prisoners at Guantánamo Bay can be found online at: www.aclu.org/gitmo