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During the week of July 14, 2008, the military judge in the Hamdan case issued two significant pre-trial rulings. Both involved post-Boumediene motions by the defense team to assert constitutional rights. The first motion involved an assertion by the defense that the applies overseas to Guant谩namo detainees, and that the Ex Post Facto Clause bars Hamdan from being tried for the crimes of conspiracy and material support. Significantly, the military judge held, as a threshold matter, that the Ex Post Facto Clause does apply overseas to Guant谩namo detainees.

This ruling indicates how much of a sea change Boumediene potentially represents. It is also a rejection of the government鈥檚 position that the Constitution doesn鈥檛 apply overseas. Indeed, even after Boumediene, the government continues to argue that the only provision of the Constitution that applies overseas is the , because that is the only provision of the Constitution that was squarely at issue in Boumediene. That cramped reading of Boumediene cannot be squared with the decision鈥檚 logic or language.

Applying the Ex Post Facto Clause to Hamdan鈥檚 case, the military judge ruled that, in this particular instance, there was no Ex Post Facto violation. The ruling was specific to the claims made by Hamdan and does not foreclose the possibility of other detainees raising successful Ex Post Facto Clause arguments.

The second motion involved an equal protection challenge to the Military Commission Act鈥檚 distinction between citizens and noncitizens, and specifically, the fact that citizens are not subject to the military commissions governed by the Military Commission Act. This argument had previously been asserted by the defense, and rejected by the military judge in the Hamdan case. The defense renewed this motion after the Supreme Court issued its Boumediene decision. Significantly, the military court did not reject the motion out of hand, but recognized properly that, after Boumediene, it now had to determine whether it would be impracticable and anomalous to have the Equal Protection Clause apply to Guant谩namo detainees. Applying the 鈥渋mpracticable and anomalous鈥� test, the military judge unfortunately ruled that the Equal Protection Clause did not apply to Hamdan鈥檚 case and accordingly denied the motion.

The reasoning underlying the military judge鈥檚 equal protection decision was flawed. Among other things, the court stated that it would be impracticable and anomalous to reward unlawful alien enemy combatants with equal protection rights at Guant谩namo given that they have not followed the laws of war and are thus not entitled to Prisoner of War status. But the court failed to address the central point in this argument: why should citizens automatically have greater rights where they have likewise been deemed to be unlawful enemy combatants? If in the military judge鈥檚 view the relevant criterion is the type of act committed by the detainee, then citizenship status should not be determinative.

On Thursday July 17, 2008 a few hours after Judge Robertson of the Federal District Court in D.C. refused to stay the trial, the military judge ruled that he would require the government the show that hearsay evidence met a hearsay exception or was reliable, but did not categorically rule out the possibility of using hearsay evidence. This is a significant issue for the defense and reveals one of the many glaring problems with the entire military commission system. The defense, for example, contends that the government has no witness who actually saw Hamdan with missiles when he was captured, yet the prosecution apparently intends to introduce evidence from individuals from Afghanistan to that effect, despite the fact that those individuals will not be available in court for cross examination.

The judge is likely to rule within the coming days on additional defense motions being made in light of Boumediene, including whether the prosecution may use evidence obtained through coercive methods or torture and whether self-incriminating statements obtained without a notice of rights to Hamdan may be used. The judge is also likely to rule in the coming days on whether Hamdan has a right to a speedy trial, a jury trial and an indictment by a Grand Jury. Some or all of these defense motions will test the scope of the Boumediene decisions. Further, the judge will decide whether Hamdan should be moved to less punitive conditions of confinement for his deteriorating mental health and so that he may be in a better position to assist his attorneys during the trial.

The rulings in these pending motions will likely have a significant effect on the trial and will also tell us much about how fair these proceedings are likely to be. In particular, the government apparently intends to introduce numerous statements made by Hamdan himself to government interrogators. Yet the government concedes that it was United States policy not to afford Hamdan and other similarly situated detainees with an advisal of their rights, even though it was plain to everyone that Hamdan and others were being questioned as criminal suspects.

Equally troubling, Hamdan and a Veterans Administration psychologist testified about the significant coercion and torture that was a constant in the aftermath of Hamdan鈥檚 capture, yet the government contends that none of the statements that were provided by Hamdan under these conditions should be suppressed. In fact, defense counsel learned only last week about a new sleep deprivation program called 鈥淪andman鈥� 鈥� a program that apparently lasted at least a month and to which Hamdan was apparently subjected. There was also significant testimony from Hamdan and the VA psychologist that the quality and quantity of medical care that Hamdan would receive was made contingent upon how much 鈥渦seful鈥� information that Hamdan provided. Fitting a pattern of sexual abuse of detainees around the world, there was also testimony that a female interrogator threatened to touch Hamdan鈥檚 groin unless he was more forthcoming. Despite all of this testimony, the government appears to be taking the remarkable position that Hamdan was neither coerced nor tortured into providing statements.

In short, this week at the military commissions in Guant谩namo has been yet another example of 鈥�9/11 exceptionalism.鈥� Despite the venerable rights under our system of law to confront witnesses and not to be coerced (much less tortured) into providing testimony, it appears that the government is likely to succeed in going forward with military trials that lack these most basic protections. As troubling, the government is once again taking an impermissibly narrow view of the Supreme Court鈥檚 post-September 11th precedent. Indeed, the government鈥檚 attempt to read Boumediene as a decision solely about the Suspension Clause is like someone in 1954 reading Brown v. Board of Education as a decision solely about schools.