Today was a heartening day, in a way, because of the professionalism of the lawyers involved and their vigorous efforts to try to make the proceedings fair. But also a heartbreaking day of watching a dysfunctional system in action.
It continues to be hard to watch everybody’s best effort to make something decent and fair out of this process, which is emerging as something that is neither decent nor fair.
Today we saw the personal cost of unfairness in new ways. I’ll cover three things from today.
1. David Hicks and his parents.
2. The continued dysfunction of the proceedings.
3. The emerging camaraderie here.
David Hicks and his parents.
Today was the preliminary hearing for David Hicks. David Hicks, 29, is one of two Australians detained on Guanatanmo. Mr. Hicks’ family believes that David was captured by Northern Alliance forces in Afghanistan, some time in early December 2001, and handed over to U.S. troops shortly thereafter, as an alleged member of a Taliban militia group. He has been at Guantanamo since January 2002.
In June 2004, formal charges were issued against Mr. Hicks, with counts of conspiracy to commit war crimes, including terrorism; attempted murder by an unprivileged belligerent; and aiding the enemy. The charge sheet alleges that Mr. Hicks underwent military training at al Qaeda training camps in Afghanistan during 2001; that he returned to Afghanistan from a visit in Pakistan after September 11 to link up with “his al Qaida associates”; and that he then joined up with forces engaged in combat against the U.S.-led Coalition.
The charges do not allege that Mr. Hicks actually killed or injured any individual. Marine Corps Major Michael Mori is the assigned military defense counsel for Mr. Hicks.
Today’s proceedings were devoted, much like yesterday’s, to defense counsel questioning the military commission members about their ability to deliver a fair and impartial verdict. I’ll address this more below.
But first I want to tell you about the most dramatic part of the day – the remarks by Mr. Hicks’ parents at a press briefing after the day’s proceedings.
This added an emotional aspect to the day that we had not yet experienced.
Mr. Hicks’ parents haven’t seen their son in years. There was a moment before the proceedings where they embraced, and Terry Hicks, David’s father, described this to us in a press briefing after the proceedings.
Terry Hicks told us that it was much of what any of us would imagine. The family hugged and kissed and cried. They discussed family – in particular a cousin of David Hicks who was recently married. David Hicks asked his parents if family members were still on his side. His parents told him that they were, of course, and that so were most of the Australian people.
There were a very few moments when Terry Hicks seemed to be struggling with his emotions. I will paraphrase much of what he said. If we can get the transcript of his remarks, we will post it. Here are some highlights of what he said.
• Terry Hicks said David is worried about his own mental health, mainly because of his isolation – that he is finding it difficult to cope when he is alone. (David is in solitary confinement.)
• Terry Hicks thought his son looked well and even gained a bit of weight, though he wondered aloud if that might be from limited exercise.
• David Hicks told his parents some unpleasant stories of abuse. While the son said that he hadn’t experienced physical abuse on Guantanamo, he experienced it when he was first captured in Afghanistan. He said the abuse at Guantanamo was psychological.
• Terry Hicks said his son was happy with the day’s proceedings.
A reporter asked Terry Hicks if he felt any anger toward his son. The father said,“I don’t feel any anger toward David. He’s his own person and this could have happened to anyone.”
Another reporter asked about letters – had the family received letters from their son, and had David Hicks received their letters? Letters had been exchanged, the father said, but all had been censored. What was most surprising about this, to the father, was that “all the love bits had been taken out.” In the letters David Hicks received, the government censored references that indicated love and support. The “we love yous” and “we support yous” had been blacked out.
Terry Hicks was asked about his feelings toward the United States. He said he harbored no ill will against the United States. His anger, he said, was not with the American people or the military, but with those in power.
He ended by saying that his main aim was to get his son back to Australia to have proceedings take place there. When asked how it was to say goodbye. Terry Hicks said, “You can imagine it was an emotional parting. It’ll be some time before we see him again.”
Continuing dysfunction of the process.
Today was devoted to voir dire in Mr. Hicks’ case. (See yesterday’s entry for a description of this process.) Today’s voir dire was much the same as yesterday’s, but things went much more quickly today because there was no need for translation – the proceedings were all in English. The defense counsel also introduced the transcript from yesterday, so much of today focused on follow-up questions.
Again, the process focused on the ability of the commission members to hear and judge the case impartially. Defense attorneys have aggressively questioned the ability of the commission members – who will act as the jury in this case – to listen to the evidence impartially. Career military men, some of the commission members actually played an active role in Afghanistan operations which led to the detention of some of the men whose cases will be decided by the commission.
Some disturbing evidence about the potential partiality of the judges emerged today. Col. Peter Brownback, the Presiding Officer, who wields enormous authority in the day to day proceedings, turns out to be a longtime close friend of the Appointing Authority, Retired Major General John D. Altenburg. Maj. Gen. Altenburg roasted Col. Brownback at his retirement parity and Col. Brownback gave the roast at Maj. Gen. Altenburg’s retirement party. It’s a huge conflict and deeply concerning. This is in some ways like the prosecutor in a criminal case and the lead juror being best of friends.
The structural concern about judge and jury being in the same body continues. All of the commission members are supposed to have equal authority to decide matters of facts, and will also at times be called upon to determine matters of law. And yet the Presiding Officer naturally continues to exercise heightened authority.
In criminal and military justice systems, the jury is made up of one’s peers and they are the finders of fact. The judge is the finder of law – what “good cause” means in the law; whether we should follow international law or U.S. criminal law. The judge figures out what concepts such as “reasonable doubt” mean and then defines them. The reason he does that is because he knows the law and he knows how to interpret law.
In this case, the military commission members – with the exception of the Presiding Officer – have no legal background, yet will be asked to appraise and to some degree interpret the law.
Here’s an example of a typical interchange: A defense counsel will ask one of the commission members: What do you understand due process to mean?
If you ask this question of a lawyer, you’ll get a certain answer. They’ll say due process is what you get under the 5th Amendment and other provisions of the Constitution – the right to counsel, the right to confront witnesses, the right to see adverse evidence, the protection against self incrimination, the right to an impartial jury of your peers, etc.
When asked today by the defense counsel what due process was, one member said: “Justice.”
These men are trying their best, but they have no idea what due process means as a legal concept and a legal right. Their understanding is generalized. And yet, we have two centuries that define due process – by binding authority, by decisions of the U.S. Supreme Court, by statute and by treaties. The panel effectively will be able to draw on none of this.
The Presiding Officer compounded the imbalance in the commission members’ knowledge by over-reaching repeatedly. Throughout the day, he rephrased the defense counsel’s questions – as a way, it seemed, to explain them. But his re-phrasings were leading, and at times they changed the meaning of the question or were conclusive. For instance, a defense counsel asked: “Is it important to a fair trial that the defendant be aware that his action was a crime when he committed it?”
One of the members answered, in effect, that ignorance of the law was no excuse.
The Presiding Officer then said something to the effect of: “Don’t all members agree that it’s not fair to hold someone accountable for a crime he did not know was a crime.” Such rephrasing prevents the defense counsel from ascertaining the real thinking and understanding of the other commission members.
Just a note about how we all are getting on. Everyone involved in these matters is tired – make that exhausted. But there is a great deal of trust-building going on – between and among counsels, and among the NGO observers and the military. We have a great deal of rush, rush, rush and then wait. During our downtime, the participants have a chance to find out a bit about each other. There has been connecting across divides of backgrounds and experience and that has been really positive.
What has struck me most about it is that everyone here is struggling to do his and her best – and there is this feeling, this strong pull among us all toward the tradition of American law where the process is fair. Despite what we have been seeing in this courtroom, this at least is reassuring.
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