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Context of 'September 29, 2006: Senior Defense Officials Allegedly Request Al-Qaeda Detainee Convictions before 2008 US Election'

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Salim Ahmed Hamdan in 1999.Salim Ahmed Hamdan in 1999. [Source: Pubic domain via the New York Times]In the Hamdan v. Rumsfeld case, the Supreme Court rules 5-3 to strike down the Bush administration’s plans to try Guantanamo detainees before military commissions. Ruling in favor of detainee Salim Ahmed Hamdan (see November 8, 2004), the Court rules that the commissions are unauthorized by federal statutes and violate international law. Writing for the majority, Justice John Paul Stevens says, “The executive is bound to comply with the rule of law that prevails in this jurisdiction.” The opinion throws out each of the administration’s arguments in favor of the commissions, including its assertion that Congress had stripped the Supreme Court of the jurisdiction to decide the case. One of the major flaws in the commissions, the Court rules, is that President Bush unilaterally established them without the authorization of Congress. [New York Times, 6/30/2006] During the oral arguments three months before, Hamdan’s lawyer, Neal Katyal, told the Court: “The whole point of this [proceeding] is to say we’re challenging the lawfulness of the tribunal [the military commissions] itself. This isn’t a challenge to some decision that a court makes. This is a challenge to the court itself, and that’s why it’s different than the ordinary criminal context that you’re positing.” [Savage, 2007, pp. 274-275]
Major Defeat for Bush Administration - Civil libertarian and human rights organizations consider the ruling a shattering defeat for the administration, particularly in its assertions of expansive, unfettered presidential authority. Bush says in light of the decision, he will work with Congress to “find a way forward” to implement the commissions. “The ruling destroys one of the key pillars of the Guantanamo system,” says Gerald Staberock, a director of the International Commission of Jurists. “Guantanamo was built on the idea that prisoners there have limited rights. There is no longer that legal black hole.” The ruling also says that prisoners held as “enemy combatants” must be afforded rights under the Geneva Conventions, specifically those requiring humane treatment for detainees and the right to free and open trials in the US legal system. While some form of military trials may be permissible, the ruling states that defendants must be given basic rights such as the ability to attend the trial and the right to see and challenge evidence submitted by the prosecution. Stevens writes that the historical origin of military commissions was in their use as a “tribunal of necessity” under wartime conditions. “Exigency lent the commission its legitimacy, but did not further justify the wholesale jettisoning of procedural protections.” [New York Times, 6/30/2006] In 2007, author and reporter Charlie Savage will write, “Five justices on the Supreme Court said Bush had broken the law.” [Savage, 2007, pp. 275]
Hardline Conservative Justices Dissent - Stevens is joined by Justices David Souter, Stephen Breyer, and Ruth Bader Ginsburg. Justice Anthony Kennedy issues a concurring opinion. Dissenting are Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Thomas, in a dissent signed by Scalia and Alito, calls the decision “untenable” and “dangerous.” Chief Justice John Roberts recused himself from the case because of his participation in a federal appeals court that ruled in favor of the administration (see November 8, 2004).
Not Charged for Three Years - Hamdan is a Guantanamo detainee from Yemen, captured in Afghanistan in November 2001 and taken to Guantanamo in June 2002. He is accused of being a member of al-Qaeda, in his function as driver and bodyguard for Osama bin Laden. He was not charged with a crime—conspiracy—until mid-2004. [New York Times, 6/30/2006]

Entity Tags: Samuel Alito, US Supreme Court, Salim Ahmed Hamdan, Stephen Breyer, Ruth Bader Ginsburg, John G. Roberts, Jr, Al-Qaeda, Antonin Scalia, Bush administration (43), Center for Constitutional Rights, Anthony Kennedy, John Paul Stevens, David Souter, International Commission of Jurists, Gerald Staberock, Geneva Conventions, Clarence Thomas

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Air Force Colonel Morris Davis.Air Force Colonel Morris Davis. [Source: US Department of Defense]Politically motivated officials at the Pentagon push for convictions of high-profile detainees ahead of the 2008 elections, according to Air Force Colonel Morris Davis, lead prosecutor for terrorism trials at Guantanamo Bay. Davis, whose later resignation is partially caused by this pressure (see July 2007), says the strategic political value of such trials is discussed at a meeting on this day, and that officials prefer “sexy” cases, rather than those that are most solid or ready to go. Davis will later say: “There was a big concern that the election of 2008 is coming up.… People wanted to get the cases going. There was a rush to get high-interest cases into court at the expense of openness.” [Washington Post, 10/20/2007] Davis specifically alleges that Deputy Defense Secretary Gordon England says to him and other lawyers, “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election.” [Miami Herald, 3/28/2008]

Entity Tags: Morris Davis, Gordon England

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties, 2008 Elections

General Thomas Hartmann allegedly interfered with Guantanamo Bay prosecutions.General Thomas Hartmann allegedly interfered with Guantanamo Bay prosecutions. [Source: US Air Force]A new legal adviser to military commission hearings for detainees in Guantanamo Bay, General Thomas Hartmann, interferes with prosecutions, angering lead prosecutor Colonel Morris Davis (see September 29, 2006). Davis says that Hartmann’s position as adviser to the convening authority for the trials means he should stay neutral, but instead Hartmann requests detailed information on pending cases, defines the sequence in which they will be brought, and gets involved in “nano-management.” A Pentagon review partially supports Davis, advising Hartmann that he should “diligently avoid aligning himself with the prosecutorial function so that he can objectively and independently provide cogent legal advice” to the official in charge of supervising the commissions. Hartmann also supports using classified evidence in closed court sessions, which Davis wants to avoid, because it might taint the trials in the eyes of international observers and make it seem that the trials are stacked against defendants. Davis also objects to all elements of the military commissions being put under the Defense Department’s general counsel, as he thinks this could lead to a conflict of interest, and this causes him to resign in October (see October 4, 2007). [Washington Post, 10/20/2007]

Entity Tags: Thomas Hartmann, Morris Davis

Timeline Tags: Torture of US Captives, Complete 911 Timeline, Civil Liberties

Air Force Colonel Morris Davis resigns his position as the lead counsel for the military commissions trials at Guantanamo after complaining that his authority in prosecutions is being usurped for political purposes (see October 19, 2007). In particular, Davis complains about interference by Air Force Brigadier General Thomas Hartmann, a legal adviser at Guantanamo (see July 2007), and Defense Department General Counsel William J. Haynes (see October 4, 2007). [Washington Post, 10/20/2007] Davis planned on prosecuting as many as 80 of the Guantanamo detainees. There have been no trials so far, because the Supreme Court ruled the trials unconstitutional until they were reauthorized by the Military Commissions Act (see October 17, 2006). Davis has made headlines with outspoken support of the trials and his colorful characterizations of Guantanamo detainees. In March 2006, he compared detainees who challenged the trial system to vampires afraid of the harsh sunlight of US justice: “Remember if you dragged Dracula out into the sunlight, he melted? Well, that’s kind of the way it is trying to drag a detainee into the courtroom,” he told reporters. “But their day is coming.” [Miami Herald, 10/6/2007]

Entity Tags: Morris Davis, Military Commissions Act, Thomas Hartmann, US Supreme Court

Timeline Tags: Torture of US Captives, Civil Liberties

The former lead prosecutor for terrorism tribunals at Guantanamo, Colonel Morris Davis, tells reporters that senior officials at the Pentagon pushed for convictions of high-profile detainees before the November 2008 presidential elections, placing politics ahead of duty. Davis says that the pressure from the Pentagon played a part in his decision to resign (see October 4, 2007). Davis says senior Defense Department officials discussed the “strategic political value” of putting some prominent detainees on trial in a September 2006 meeting (see September 29, 2006). Davis also says he objected to newly appointed senior officials’ insistence on using classified evidence in closed sessions of court, and to the military commissions being put under Pentagon general counsel William J. Haynes (see October 4, 2007).
'Less than Full, Fair and Open' - Davis had serious concerns about the use of classified evidence, due to worries it could be seen to be tainting trials. Davis says that since Brigadier General Thomas Hartmann’s arrival as legal adviser to the convening authority in the summer of 2007, Hartmann has attempted to speed up trials that will engage media attention and show the public that the process works (see July 2007). “He said, the way we were going to validate the system was by getting convictions and good sentences,” Davis says. “I felt I was being pressured to do something less than full, fair and open.” [Washington Post, 10/20/2007] Pentagon regulations require the legal adviser to be an impartial administration and not an arm of the prosecution.
'Political Commission' - Law professor Marc Falkoff, who represents some of the Guantanamo detainees, will observe that the interference Davis cites “is a patent violation of Rule 104 of the Manual for Military Commissions and Section 949b of the Military Commissions Act, both of which make it unlawful to ‘attempt to coerce or, by any unauthorized means, influence… the exercise of professional judgment by trial counsel or defense counsel.’” Falkoff notes that in the Supreme Court’s Hamdan verdict (see June 30, 2006), Justice Anthony Kennedy specifically disapproved of the first military commissions because they lacked “the safeguards that are important to the fairness of the proceedings and the independence of the court.” Davis says, “[A]s things stand right now, I think it’s a disgrace to call it a military commission—it’s a political commission.” [Jurist, 11/2/2007]

Entity Tags: William J. Haynes, US Supreme Court, Morris Davis, US Department of Defense, Anthony Kennedy, Marc Falkoff, Thomas Hartmann

Timeline Tags: Torture of US Captives, Civil Liberties, 2008 Elections

Morris Davis, the former lead prosecutor for the Guantanamo military commissions who resigned in October (see October 4, 2007), tells interviewer Dan Rather that the upcoming prosecutions at Guantanamo are largely driven by political concerns (see October 19, 2007). “I think the big fear that was expressed was if Hillary Clinton wins the White House [in 2008]—this whole show goes away, and Guantanamo is shut down.… So, there’s a distrust of the military. And you’ve got political involvement. What I’ve seen in this process is that if you combine—ya know, excessive—arrogance with excessive ignorance—you wind up with six years later with—one guilty plea done.” [Business Wire, 12/14/2007]

Entity Tags: Dan Rather, Hillary Clinton, Morris Davis

Timeline Tags: Torture of US Captives, Civil Liberties

Navy Lieutenant Commander Brian Mizer, the lawyer for Guantanamo detainee Salim Hamdan, says that senior Pentagon officials are orchestrating war crimes prosecutions for the 2008 presidential campaign. In a court brief filed on this day, Mizer describes a September 29, 2006 meeting at the Pentagon where Deputy Defense Secretary Gordon England asked lawyers to consider 9/11-related prosecutions in light of the upcoming presidential campaign. “We need to think about charging some of the high-value detainees because there could be strategic political value to charging some of these detainees before the election,” England is quoted as saying (see September 29, 2006). Pentagon spokesman Bryan Whitman refuses to discuss specifics of the case, but says that the Pentagon “has always been extraordinarily careful to guard against any unlawful command influence” in upcoming military commissions trials. Mizer says that because of England’s instructions, and other examples of alleged political interference, his client cannot get a fair trial. Three weeks before England’s observation about the “strategic political value” of the trials, President Bush disclosed that he had ordered the CIA to transfer “high-value detainees” from years of secret custody to Guantanamo for trial.
Issues 'Scrambled' - Attorney Eugene Fidell, president of the National Institute of Military Justice, says the Hamdan motion exposes the problem of Pentagon appointees’ supervisory relationship to the war court. “It scrambles relationships that ought to be kept clear,” he says. England’s statement, says Fidell, is “enough that you’d want to hold an evidentiary hearing about it, with live witnesses. It does strike me as disturbing for there to be even a whiff of political considerations in what should be a quasi-judicial determination.” Susan Crawford is the White House-appointed supervisor for the court proceedings; England is a two-term White House appointee who has supervised the prison camps’ administrative processes. Crawford, England, and other White House officials have crossed the legal barriers that separate various functions of a military court, Mizer argues. Mizer plans to call the former chief prosecutor for the Guantanamo trials, Morris Davis (see October 4, 2007), who first brought the England remark to light. Davis resigned his position after contending that political influence was interfering with the proper legal procedures surrounding the prosecution of accused war criminals.
Motion for Dismissal - Mizer’s motion asks the judge, Navy Captain Keith Allred, to dismiss the case against Hamdan as an alleged 9/11 co-conspirator on the grounds that Bush administration officials have exerted “unlawful command influence.” Hamdan is a former driver for Osama bin Laden whose lawyers successfully challenged an earlier war court format (see June 30, 2006). Hamdan’s case is on track to be the first full-scale US war crimes tribunal since World War II. [Miami Herald, 3/28/2008]

Entity Tags: Michael Hayden, Eugene R. Fidell, Central Intelligence Agency, Bryan Whitman, Brian Mizer, George W. Bush, Gordon England, Keith Allred, US Department of Defense, Salim Ahmed Hamdan, Susan Crawford, Morris Davis, Osama bin Laden

Timeline Tags: Torture of US Captives, Civil Liberties, 2008 Elections

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