March 31, 2007 – “Surrealism at Guantanamo”

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Hina Shamsi – a lawyer at Human Rights First in the Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

March 31 , 2007
Surrealism at Guantanamo

There was a stifled gasp in the courtroom on Friday when the military commission judge announced that David Hicks would spend nine months in prison. Only minutes before, the jury of 8 military men had sentenced Hicks to seven years. The difference reflected a plea agreement that had been in the works before the first hearing in the Australian detainee’s case this past Monday. David Hicks gets to go home in the next two months – and speculation is that it will be soon – to serve his time. He finally gets certainty after five years of arbitrary detention and so do we: the military commission system that lead to his conviction is not full, fair, or transparent.
It was a surreal day and I’m still trying to sort through all that happened. Here’s the original version of the plea agreement (I don’t yet have a copy of the final) and here’s the stipulation of facts agreed to as part of the plea deal.

The Plea Agreement and Sentencing
We now know from the post-sentencing press conference that the military commissions convening authority directly negotiated the plea with Hicks’s military defense counsel. The original agreement, which contained most of the main terms of the final, was signed on Monday, before the first hearing in the case. After that, we had to wait for the jury of military officers to arrive on the island on Friday morning for sentencing.

Friday morning, we found out that Hicks would be sentenced to a maximum of seven years under the plea agreement, but that the convening authority had agreed to “suspend” the time he served in prison for an unspecified period, which was not revealed to us observers and the press. The time Hicks would actually serve, we were told, would be the lesser of this unspecified period or the sentence the jury arrived at. So there was a great deal of suspense and speculation during the day about how much jail time Hicks would actually get.

The real shocker was that the only evidence that was the basis of the charges to which Hicks pled guilty was statements made by him and unspecified others to interrogators. Given all the allegations of abuse both of Hicks and other detainees in Guantanamo and Afghanistan, there’s a real possibility that the statements were coerced (more on this below). But, of course, because there’s a plea agreement, the issue was not dealt with by the military commission.
After the military commissions panel – the jury – arrived, it felt like theatre to watch them sworn in, questioned about possible biases, given instructions and then sent off to deliberate, knowing all the time that they didn’t know the full terms of the plea agreement. They were told only that they had to decide a sentence between no time served or a maximum of seven years.
The unreal nature of the entire proceeding was heightened by the prosecution’s argument to the jury that Hicks was an enemy, intent on killing Americans, who should receive the maximum sentence. If that were the case, I wondered, why agree to a plea and why only seven years?
Prosecutors originally charged Hicks with attempted murder and he was painted as a dangerous terrorist. Based on the facts he pled to, Hicks trained with al Qaeda but appears to have been a less than effective recruit; he tried (unsuccessfully) to train others, guarded a tank, spent two hours on the frontline of the fight in Afghanistan (he didn’t admit to engaging in combat himself), but then ran away. Hicks, in short, was revealed to be a bit player. It’s more unclear than ever why he was not tried in a federal criminal prosecution instead of being held for more than five years and becoming the first case tried in a military proceeding for an offense that was not a war crime when he committed it.

If the courtroom observers were shocked at the leniency of a nine-month sentence, I can only imagine what the jury thought of the outcome. They flew here on short notice, were told they were participating in the historic prosecution of a terrorist enemy, and imposed the maximum sentence, only to find later that the government had already agreed to let David Hicks serve less than a year. I’d love to be on the plane that took them back to the mainland U.S.
Torture Claims and Gag Order

The plea agreement states that Hicks was never “illegally treated” in U.S. custody from the time that he was captured in Afghanistan through his detention in Guantanamo. How can Hicks make this statement despite the widely reported allegations of torture and abuse he suffered? The answer likely lies in how “illegal treatment,” defined in paragraph 50 of the stipulation of facts as “any treatment in violation or contravention of Common Article III of the Geneva Conventions, the Convention Against Torture, the Detainee Treatment Act, and Title 18 of the U.S. Code” is interpreted.

Starting in 2001, Bush administration crafted a series of legal memos that sought to define torture and cruel, inhuman and degrading treatment to permit acts like stress positions, exposure to extreme temperatures, humiliation, excessive light and noise, and even waterboarding. During the period that Hicks is alleged to have suffered cruel treatment, the administration could argue that it was entirely legal.
We don’t know whether this contorted reasoning applies in Hicks case because the plea agreement explicitly prevents him from talking about the circumstances of his capture and detention for a year. (The original agreement applied the restriction to Hicks’s family as well, but this provision was struck in the final deal.) This is one of the most egregious provisions of the agreement and would likely not be constitutional if applied to an American prisoner (John Walker Lindh, for example, agreed only to withdraw any claims that he was mistreated while in U.S. military custody). If Hicks truly was not mistreated, why would his plea agreement include a gag order?

Guantanamo Itself
I expected to spend only three days at a short hearing (and packed accordingly!), and ended up staying more than a week. It’ll be awhile before I sort through the tumult of the last few days, but I suspect it’s not possible to make sense of this bizarre place.
Physically, Guantanamo Bay is beautiful and it’s hard to reconcile the blue skies and sparkling Caribbean waters with the ugliness of a system that has held up to 770 men arbitrarily and treated so many of them cruelly.

I am dismayed at the military commissions trial system, but it is clear that the women and men who are part of it, prosecution and defense alike, are doing their best to be zealous advocates. David Hicks would not be going home if his military lawyer, Major Dan Mori, had not so effectively represented his client. A stark example of an ethical prosecution lawyer is Lt. Col. V. Stuart Couch of the Marine Corps pilot. Friday’s Wall Street Journal reports that Couch has refused to prosecute Mohamedou Ould Slahi, reportedly linked to the 9/11 hijackers and a man Couch describes as having “blood on his hands,” because he found that the United States had obtained Slahi’s incriminating statements through torture. Despite the best efforts of the military commissions lawyers, judges and support staff to work within the deeply flawed system Congress enacted, the administration’s detainee treatment and trial policies may end up defeating them.

I started out these dispatches wondering about the reality of Guantanamo versus my perceptions from afar. I wouldn’t change the words that come to mind when I think of Guantanamo, but after a week of observing the brand of justice the military commissions system provide, I would add one: heartbreaking.

I would like to thank the Department of Defense for inviting Human Rights First to observe these proceedings and the individual military personnel who deal with the logistics of having observers here. I would also like to thank the American Constitution Society for hosting this blog.