Global Policy Forum

By David Johnston and Neil A.Lewis

A military defense lawyer told a Senate hearing on Wednesday that when military authorities first asked him to represent a detainee at Guantánamo Bay, Cuba, he was instructed that he could negotiate only a guilty plea. The lawyer, Lt. Cmdr. Charles D. Swift of the Navy, who represents a Yemeni, Salim Ahmed Hamdan, said that he regarded the effort, in December 2003, "as a clear attempt to coerce to Mr. Hamdan into pleading guilty."

Commander Swift testified that when he visited Mr. Hamdan, he discovered that the prisoner did not want to plead guilty, as the authorities had apparently believed from their earlier interrogation of him, conducted without a lawyer. So, instead of negotiating a guilty plea, Commander Swift began a spirited defense, according to his testimony. He filed motions to ensure that he be entitled to represent Mr. Hamdan and demanded that his client be given a health examination. The account of Mr. Hamdan's case, given at a hearing of the Senate Judiciary Committee, provides a fresh illustration of how the military's initial expectations for war crimes trials at Guantánamo went unfulfilled.

The events surrounding the case were described at a hearing on legal procedures at the military-run prison, which was opened in early 2002 and houses about 525 prisoners from more than 40 countries who are suspected of having ties to Al Qaeda or the Taliban. The prison has long been the subject of complaints about abuse and of criticism that detainees have been held for long periods without being charged with crimes. After the prison opened, senior military officers said that they planned that the first detainees to go before a military commission would be those who would plead guilty. They said at the time that starting with a few guilty pleas would lend legitimacy to the process and to the evidence used as a basis for imprisoning and charging the prisoners.

At the hearing, Senator Arlen Specter, a Republican of Pennsylvania who is the committee's chairman, said that court decisions relating to the military commissions had created "a crazy quilt" of rules relating to the detainees, but he seemed careful to avoid criticism of the Bush administration. Democrats criticized the government's approach to the Guantánamo prison. Senator Patrick J. Leahy of Vermont, the panel's top Democrat, said the Bush administration had failed to follow the law. "What has become clear over the past three years is that the administration's policies were poorly reasoned and extremely shortsighted," he said. At Wednesday's hearing, Lt. Gen. Thomas Hemingway of the Air Force, the legal adviser to the military authority that runs the commissions, told the committee there was never any threat of coercion in Mr. Hamdan's case. The authorities eventually charged Mr. Hamdan with crimes involving terrorism, asserting that he was a driver and bodyguard for Osama bin Laden. A federal judge halted his trial, saying the military commissions were unconstitutional. The government has appealed.

Commander Swift read a letter in which the chief prosecutor, Col. Fred Borch of the Army, wrote that he would ensure that a defense lawyer be given access to Mr. Hamdan and that "such access shall continue so long as we are engaged in pretrial negotiations." Commander Swift said, "I was deeply troubled that to ensure that Mr. Hamdan would plead guilty as planned, the chief prosecutor's request came with a critical condition that the defense counsel was for the limited purpose of 'negotiating a guilty plea' to an unspecified offense and that Mr. Hamdan's access to counsel was conditioned on his willingness to negotiate such a plea." General Hemingway testified that Commander Swift was mistaken and that, "in the first place, the chief defense counsel is the individual who appointed Lt. Cmdr. Swift to defend Mr. Hamdan, not the prosecutor."

The future of Guantánamo has stirred a broad debate in recent days. In Brussels on Wednesday, speaking to reporters after a meeting of European Union officials, Attorney General Alberto R. Gonzales said that the detention center would be shut down eventually, but he offered no timetable and indicated that the decision would be up to the president. Justice Department officials said that Mr. Gonzales did not intend to signal any shift in the Bush administration's thinking about the Cuban detention center.