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Beginning at least in 1993 when the World Trade Center was bombed, there has been a large constituency in the United States for the proposition that Islamic killers were not part of a worldwide terrorist conspiracy aimed at the destruction of our country but merely another kind of criminal to be dealt with as part of, or at least with the tools of, the American judicial system.

Counterpoint has been the view, ascendant in the early Bush Department of Justice, that neither domestic criminal law nor Geneva Conventions are applicable to Islamic terrorists, who are illegal enemy combatants and should be dealt with accordingly.


Unfortunately, this conflict has not yet been definitively resolved.


For example, as David B. Rifkin, Jr. and Lee A. Casey have written recently in the Wall Street Journal, “in a series of cases . . . the U.S. Supreme Court has upheld many [administration] positions: that the country is engaged in an armed conflict; that captured enemy combatants can be detained without criminal trial during those hostilities; and that (when the time comes) they may be punished through the military, rather than the civilian, justice system.”


Fine.  But on the other hand, the “criminal law” mindset has been responsible for one battle after another that the Bush Administration has to fight in its efforts to deal with al-Qaeda terrorism.  Examples abound: the Patriot Act, warrantless communications monitoring, rendition, harsh interrogation, military commissions, secret prisons, judicial review.  The Supreme Court has ruled that Guantanamo prisoners have a (constitutional?) right to challenge their status as enemy combatants in an administrative hearing and to some sort of  “due process.”


Unfortunately, the “terrorist” versus “criminal” conflict persists, as a ruling last week at Guantanamo dangerously demonstrates. 


The ruling involved bin Laden chauffer-bodyguard Salim Ahmed Hamdan who, with the aid of American lawyers, was responsible a few years ago for inducing the Supreme Court, albeit narrowly, to invalidate the Bush-created military commissions.


Hamdan and his lawyers are now playing, and so far succeeding at, the reprehensible game of “graymail” a “damned-if-you-do, damned-if-you-don’t" litigation tactic.  It consists of making a request of one’s adversary for witness interviews and documentary material that he does not want to, or can not, provide.  “Graymail” is a shoddy ploy typically used by lawyers, especially those who represent criminal defendants, and by chairmen of democrat-controlled committees in Congress.

For example, in the case of Bush nominee Miguel Estrada to a federal appeals court, Senate democrats employed the graymail tactic by seeking confidential documents generated by Estrada while serving as a lawyer in the Solicitor General’s office of the Department of Justice—documents having little or no relevance to decisions that would be made by a federal court of appeals judge who takes a solemn oath to uphold the Constitution and laws of the United States.

The dilemma in the Estrada case for the Executive Branch, and the weapon the democrats’ demand gave them, was this: Either the Department of Justice complied with the Senate democrats’ demand, thus handing them a veritable can of red herring documents they could then use to manufacture yet more excuses to impugn Estrada’s ideological fitness to serve on the DC Circuit, or the government refused to hand over the confidential documents, thus enabling the democrats to complain loudly, as they did, that Estrada and his administration supporters had something to hide.

Graymail has often been used in national security cases, where in the “discovery” stage of the proceedings the defense seeks highly sensitive information so that the government is impaled on the horns of a dilemma: comply with the request, and risk compromising important secrets (which the government is understandably unwilling to do), or refuse to comply, and risk dismissal of the case (which the government certainly doesn’t want). There are countless examples, among them the case of the Los Alamos lab’s Wen Ho Lee and various criminal cases involving rogue FBI, NSA, and CIA agents.

Now, we can expect graymail to become a staple of proceedings against enemy combatants at military tribunal proceedings in Guantanamo.

On February 7, 2008, Hamdan’s lawyers appeared before military judge Navy Captain (Army and Marine Corp rank: Colonel) Keith Allred. 

According to an Army report of the proceedings, the defense asked Allred:

to compel the prosecution to turn over records of Hamdan’s confinement in Afghanistan during the period proceeding 2002 before he was detained in Guantanamo Bay.  “The prosecution seemed to have no record of the interrogation SOP’s [Standard Operating Procedures] in place during Hamdan’s detainment . . .  they have no record of detainee treatment . . . no record of guards’ instruction . . . no records of what camp Hamdan was in during that period,” Charles Swift, lead defense attorney, said. Chief Prosecutor Army Col. Larry Morris stated that, “The missing 2002 records are local detention records that deal with issues of confinement such as diet, exercise, hygiene and the location of the detainee. Prosecutors are confident that every statement made by Mr. Hamdan and every interrogation record was turned over to the defense at least a year ago.”  Defense Counsel Harry Schneider also requested access to high value detainees and individuals who were present during Hamdan’s interrogation shortly after his capture in Afghanistan. Prosecutors argued that since the video memorialized the circumstances of how Hamdan was interrogated, producing the individuals involved in the interrogation was unnecessary. However, the prosecution agreed to provide access to a linguist who was present during the interrogation that the prosecution planned to call as a witness during trial. Although the defense plans to meet with this witness, Swift still claimed that the prosecution’s failure to offer others involved in the interrogation prevents the defense from checking the veracity of other witnesses.  The defense presented a similar argument in their request to meet with high-value detainees being held in detention facilities here who they believe could prove that Hamdan was not involved in terrorist activities while employed as bin Laden’s driver. “The prosecution has taken the position that the high-value detainees that Mr. Hamdan is accused of conspiring with have nothing valuable to say, but we expect them to deny that Hamdan was a member of al-Qaida,” said Swift. “We are hopeful that the judge will give us access to these high-value detainees.”  During a press conference, Swift said the prosecution’s failure to produce particular documents prevents them from properly filing motions and adequately preparing their case. However, Army Col. Larry Morris, chief prosecutor, said the prosecution has done what the law requires, which is to provide all requested evidence that is material and relevant to the defense’s case.”  (My emphasis.)

Observe what is going on here.  Hamdan, an enemy combatant—not a prisoner of war and not a domestic criminal defendant—is charged in a military tribunal with being an al Qaeda operative who was close to Osama bin Laden.

His lawyers want wholly irrelevant records that they know are not available—even though, as in domestic criminal cases, “every interrogation record was turned over to the defense at least a year ago”

His lawyers also want access to (1) “high value detainees” and (2) “individuals who were present during Hamdan’s interrogation shortly after his capture in Afghanistan.”  In other words, as in domestic criminal cases, they want access to two categories of witnesses.  Category (1), the euphemistically characterized “high value detainees,” are the worst of the worst—sixteen prisoners isolated at Guantanamo in a prison within a prison under top secret circumstances.  They include Khalid Sheikh Mohammed, the alleged mastermind of the September 11, 2001 attacks.  Category (2) doubtless includes CIA operatives.

In short, graymail squared!

And it’s beginning to work, because the judge gave Hamdan’s lawyers what is surely the thin edge of the graymail wedge.  On April 30th, thanks to Judge Allred’s myopia, he succeeded in making the Guantanamo enemy combatant military tribunals look more and more like domestic criminal trials.

According to the Miami Herald, Allred ruled that Hamdan “is permitted to sign a personal plea to alleged senior al Qaeda leaders segregated on this base—despite a U.S. government claim that it would breach national security.”  Allred was not persuaded by Justice Department attorney John Murphy’s warning that allowing Hamdan to write a note to Khalid Sheik Mohammed and others could expose “grave national security secrets.”  Allred concluded that there was “no inherent danger” in letting Hamdan write to his now-pen pals requesting that they provide written testimony prior to his scheduled June 2, 2008 trial.  The idea is that Hamdan can seek the “worst of the worst’s” cooperation with his lawyers in support of their defense that “he was not a key al Qaeda insider but a driver on the fringes of the terror network.”

The Miami Heald reported also that “Allred had earlier ordered the government to let Hamdan's lawyers submit written questions to Camp 7 captives, in Arabic, through a government security officer with authority to censor national security secrets from the answers” but “[n]o replies have emerged. Now the lawyers want Hamdan to write the men, in effect saying, ‘This is me. Please answer my lawyers’ questions.”

Perhaps Hamdan could write: “Khalid, this is me, your ‘ole terrorist buddy from Afghanistan, Pakistan, Waziristan.  I’m just down the road here in another detention facility, eating well, praying to Allah, confounding my military guards, consulting with my America lawyers, having the Court rule military commissions illegal.  We’re asking for all kinds of stuff the infidels can’t give us, and when they don’t that will really gum up these proceedings. What a country!”

We better pray that Hamdan’s lawyers don’t next make an application to Allred for bail.