U.S. Government Plans to use Evidence Obtained by Torture in Death Penalty Case

Factsheet: Military Commissions

On November 13, 2001, President Bush issued an executive order which purported to establish military commissions to try those captured in the “War on Terror.” Under the order, the President authorized trials by military commission upon a presidential determination that there was “reason to believe” a detainee is or was an Al Qaeda member or engaged in hostilities targeting the United States. The order narrowed the scope of procedural protections for military commissions relative to the traditional courts-martial process, sharply limited the avenues for review of commission decisions, and granted discretion to “close” any portion of the proceeding and thereby exclude the accused from access to relevant evidence or the hearing itself. Furthermore, the order allowed for the admission of coerced statements or statements made by absent or undisclosed sources.

The President’s authority to establish military commissions without congressional approval was successfully challenged in Hamdan v. Rumsfeld. In response to the habeas petition of a military commission defendant, the Supreme Court ruled in June 2006 that the President overstepped his authority when creating military commissions inconsistent with domestic and international law.

Subsequently, however, Congress passed legislation authorizing military commissions. The Military Commissions Act (MCA) was enacted in direct response to the Supreme Court’s decision. In addition to the jurisdiction-stripping provisions described above, the MCA authorized the creation of military commissions with procedures deviating from the traditional rules of the Uniform Code of Military Justice (UCMJ). Among other shortcomings, the MCA rejects the right to a speedy trial, allows a trial to continue in the absence of the accused, delegates the procedure for appointing military judges to the discretion of the Secretary of Defense, allows for the introduction of coerced evidence at hearings, permits the introduction of hearsay and evidence obtained without a warrant, and denies the accused full access to exculpatory evidence.

Under the regulations promulgated subsequent to the MCA, Hamdan was formally charged in February 2007, along with two other detainees, Australian David Hicks and Canadian Omar Khadr. Under increasing pressure from the Australian government to return their citizen, the David Hicks was returned to Australia after a plea agreement was reached in which he pled guilty to a charge of material support for terrorism and received a sentence of nine months imprisonment, served in Australia, and a yearlong “gag” order. The charges against the only other two detainees to have been charged under the new military commission procedures were initially dismissed. On June 4, 2007, two separate military judges dismissed all charges against Hamdan and Khadr on jurisdictional grounds. The judges held that the MCA authorized the military commissions to try only detainees classified as “unlawful enemy combatants,” yet the two defendants were classified only as “enemy combatants” by Combatant Status Review Tribunals (CSRTs).

On November 13, 2001, President Bush issued an executive order which purported to establish military commissions to try those captured in the “War on Terror.”

On November 8, 2004, D.C. District Court Judge James Robertson ruled in Hamdan v. Rumsfeld that Salim Hamdan – accused of being a driver of Osama bin Laden – could not be tried by a military commission established by executive order. The district court opinion stayed the military commission proceedings.

On July 15, 2005, the Court of Appeals ruled 2-1 to overturn Judge Robertson’s November 8, 2004, decision in Hamdan v. Rumsfeld. The Circuit Court decision upheld the use of military commissions established by executive order to try Salim Hamdan. The D.C. Circuit held that the President had the authority to establish such military commissions without specific congressional approval, arguing that the Authorization for the Use of Military Force (AUMF), issued in 2001, was proper authorization.

On November 7, 2005, the Supreme Court issued a writ of certiorari for Hamdan v. Rumsfeld.

On March 28, 2006, Hamdan v. Rumsfeld was argued in the Supreme Court.

On December 30, 2005, the Detainee Treatment Act of 2005 (DTA) was enacted into law, purporting to strip U.S. courts of jurisdiction over habeas corpus petitions filed on behalf of Guantánamo detainees and vesting exclusive review of final decisions of CSRTs and military commissions in the D.C. Circuit Court.

On June 29, 2006, the Supreme Court decided Hamdan v. Rumsfeld and reversed the Court of Appeals decision. The Court held that the DTA did not preclude federal jurisdiction of pending habeas actions. It also ruled that the military commissions, as defined under the President’s 2001 executive order, violated military law and the Geneva Conventions.

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At Guantánamo, Mohammed al Qahtani was subjected to a regime of aggressive interrogation techniques, known as the “First Special Interrogation Plan,” that were authorized by U.S. Secretary of Defense Donald Rumsfeld. Those techniques were implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, Major General Geoffrey Miller. These methods included, but were not limited to, forty-eight days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory overstimulation, and threats with military dogs. The aggressive techniques, standing alone and in combination, resulted in severe physical and mental pain and suffering. To this day, Mr. al Qahtani has not received any therapeutic medical evaluation of or treatment for the physical or psychological injuries from his abuse. He continues to suffer from ongoing psychological pain and suffering arising from his torture and cruel, inhuman and degrading treatment.

Despite evidence of U.S. officials’ responsibility for and complicity in his torture and cruel, inhuman and degrading treatment, no U.S. official has ever been held accountable.

Available to read or download in pdf format are both the offical log kept by the U.S. Government (and approved by former Secretary of Defense Donald Rumsfeld) of Al Qahtani's interrogation, and an offical declaration made by his lawyer Gitanjali Gutierrez.