Hamdan not entitled to Fifth Amendment protections: military judge

[JURIST] Navy Capt. Keith Allred, the judge presiding over the military commission trial of Salim Ahmed Hamdan [DOD materials; JURIST news archive], ruled [text, PDF] Monday that Hamdan is not entitled to the protection against self-incrimination under the Fifth Amendment of the US Constitution [text]. In the same order, Allred also barred evidence obtained in Afghanistan immediately after Hamdan's capture there in 2001 because of the "highly coercive" conditions of his detention. Hamdan pleaded not guilty to charges [charge sheet] of conspiracy and providing material support to terrorism at the beginning of the trial Monday at Guantanamo Bay [JURIST news archive]. Hamdan is the first so-called "enemy combatant" to be tried by a military commission at Guantanamo. Ruling against Hamdan's right to protection under the Fifth Amendment, Allred wrote:

In summary, the commission finds that (1) the accused has been found to be an unlawful enemy combatant by a full, fair, open and adversarial hearing; (2) that the site of his apprehension and detention, in the Court's own words "is a factor that weighs against a finding that he has rights under the [Constitution]"; (3) there are substantial practical arguments against applying the 5th Amendment "with full force and effect" in Guantanamo Bay; (4) that the alternative remedy Congress has provided, is considerably less protective than the 5th Amendment but is consistent with the minimal protections guaranteed to unlawful combatants under Common Article 3; (5) that there is no necessity for the 5th Amendment to prevent injustice, and (6) that application of the 5th Amendment in Guantanamo Bay would be anomalous in some respects. The preponderance of these factors analyzed weigh against the application of the 5th Amendment in Guantanamo Bay. The Supreme Court has expressly disclaimed extraterritorial application of the 5th Amendment as recently as 1990 "The claim that extraterritorial aliens are entitled to rights under the 5th Amendment has been emphatically rejected."[citation omitted]
The New York Times has more. The Miami Herald has additional coverage.

Last week, a judge in the US District Court for the District of Columbia rejected [JURIST report] a bid by Hamdan's lawyers to stay his trial, ruling that a civilian court should refrain from reviewing the case until the military commission issues a final judgment. Earlier last week, Allred denied [JURIST report] Hamdan's motion to dismiss the charges against him, holding that the military commission assigned to his trial had jurisdiction to hear the case. Hamdan has been in US custody since 2001 when he was captured in Afghanistan and accused of working as Osama Bin Laden's driver. In 2006 he successfully challenged US President George W. Bush's military commission system when the Supreme Court ruled [opinion, PDF; JURIST report] that the commission system as initially constituted violated US and international law. Congress subsequently passed the Military Commissions Act of 2006 [DOD materials], which established the current military commissions system. In April, Hamdan announced that he planned to boycott his military commission trial, and in May a military judge delayed the trial [JURIST reports] until this month.


 

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