Author Archives: Michael Froomkin

The NY Times has an eye-opening article on the first day of the Guantanamo proceeding (I hesitate to call it a “trial”) against Salim Ahmed Hamdan. First War-Crimes Case Opens at Guantánamo Base.

Naturally, since this is the first case of the new system, and the eyes of the nation and the world (especially the Islamic world) are upon it, the government has taken every precaution to make sure the proceeding both is and is seen as fair. The defense has been given adequate resources (NOT!). And the panel has been carefully selected to reflect the high standard of even-handedness and professionalism that characterizes the military justices system at its best.¹

Oops.

Much of the morning was taken up with Commander Swift's efforts to portray Colonel Brownback as incapable of serving impartially because of extensive contacts with senior Pentagon officials who helped set up the military tribunals. Colonel Brownback, who came out of retirement to serve on a tribunal, seemed annoyed at Commander Swift's request that he step aside and said he would forward it to the Pentagon. By the end of the day Commander Swift had challenged the suitability of four other panel members.

Commander Swift said that Colonel Brownback should be disqualified because he said at a July 15 meeting with some lawyers that he did not believe Guantánamo detainees had any rights to a speedy trial. Colonel Brownback sharply denied making the remark.

But hours later at the conclusion of the day's proceedings, Commander Swift stunned Colonel Brownback when he said he had just learned that an audiotape of the meeting existed and he would like to include it in his request that Colonel Brownback be disqualified. Colonel Brownback covered his face with his hands for several moments and then agreed to have the tape recording included.

If it turns out that the presiding officer of the tribunal has lied in open court about his views and actions in order to remain in charge of the proceedings, it will taint — perhaps irretrievably — the entire proceedings.

And while Col. Peter E. Brownback III is as entitled to a presumption of innocence until proven guilty just as much as, well, the defendant, if it should transpire that this tape contradicts his courtroom remark, I trust there is a court-martial and a disbarment in his future.

¹ Honest: at its best, the military justice system is really very good indeed; arguably in criminal cases it is in some ways superior to the civil justice system.