Khadr and al Darbi: Too Late for “Speedy” Trials

Kevin Lanigan -Director of the Law and Security Program at Human Rights First – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. He is providing updates of what he observes.

Guantánamo Bay, March 13, 2008: Two military commission hearings were held on Thursday, March 13: a hearing on defense motions for discovery in the case of Omar Khadr, and the initial appearance and arraignment of Ahmed Mohammed Ahmed Haza Al-Darbi.

Khadr, a Canadian citizen who was wounded and captured in a 2002 firefight with U.S. forces in Afghanistan when he was 15 years old, is charged with murder, attempted murder, providing material support for terrorism and spying. He is accused of throwing a grenade that killed a U.S. soldier during the firefight.

Al-Darbi, a Saudi citizen who was arrested by Azerbaijan authorities and transferred several months later to U.S. custody in Bagram, Afghanistan, is charged with conspiracy and providing material support for terrorism.

The big news from yesterday’s hearings came from the morning Khadr session. Navy Lieutenant Commander William Kuebler, Khadr’s detailed defense counsel, revealed that there are apparently two different battalion commander reports describing the 2002 firefight, both bearing the same date, but apparently produced a couple of months apart. The battalion commander’s initial report—written immediately following the engagement—is said to have revealed that the enemy fighter who actually killed the U.S. soldier Khadr is accused of killing was himself killed by U.S. forces during the firefight. The second version, apparently generated a couple of months later, but bearing the same date as the first, is said to contain a revised description of events, indicating that the enemy fighter was “engaged” rather than killed. Kuebler contends that this second report was “manufactured” by the government to buttress its case against Khadr, who by that time was being held in U.S. custody at Bagram and, according to Kuebler, had been accused by his interrogators of killing a U.S. soldier.

Yesterday, Kuebler requested the right to depose the Army lieutenant colonel who commanded the battalion involved in the 2002 firefight. Army Colonel Bruce Pagel, the deputy chief prosecutor, responded by denying that the government had manufactured evidence against Khadr.

What struck me about both hearings yesterday was not this particular controversy, but rather the extent to which the government attempted to handcuff the defense, notwithstanding the government’s stated desire to give these proceedings the appearance of fairness.

In 2006, the Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 548 U.S. ___ (2006), struck down the original military commissions system that had been established by order of President Bush, because it violated the Uniform Code of Military Justice (UCMJ) and had not been authorized by Congress. Subsequently, when the Bush administration went to Congress for a law to establish military commissions, senior Bush administration representatives expressly rejected taking an approach (favored by many in Congress and the then-serving judge advocates general of the military services) that would have used the UCMJ as the starting point for a military commission system, making any necessary adjustments to meet the true exigencies of terrorism cases.

Instead, the Bush administration made clear that its approach—which became the Military Commissions Act of 2006—rejected the UCMJ as the foundation for military commissions. Stephen Bradbury (who runs the Justice Department’s Office of Legal Counsel (OLC), but has not been confirmed by the Senate as Assistant Attorney General) was the Bush administration’s point-person with Congress on this issue in 2006. In July 2006, portraying UCMJ procedures as a benefit that should be bestowed only upon U.S. soldiers, Bradbury told the Senate Judiciary Committee:

In trying al Qaeda terrorists for their war crimes, we firmly believe that it is neither appropriate as a matter of national policy, practical as a matter of military reality, nor feasible in protecting sensitive intelligence sources and methods, to require that military commissions follow all of the procedures of a court-martial.

But the administration’s talking points have since changed. In a February 2008 press conference announcing the filing of charges against the first of the “high value” detainees, Air Force Brigadier General Thomas Hartmann, legal advisor to the military commissions’ “appointing authority,” sought to cloak the military commission system in the mantle of the UCMJ:

These processes that we have before the military commissions in many ways parallel the military justice system which, I think, is very well regarded by the defense community as giving tremendous rights to defense. In our case, we have to make some adjustments for national security, for pretrial rights, speedy trial and so forth, because of the nature of the global war on terror, which has extended for some time and is continuing.

Several incidents yesterday made clear that the true military commission system—at least as the government would choose to run it—is much closer to Bradbury’s distancing from the UCMJ than Hartmann’s embrace of it.

In the Khadr case, Kuebler presented numerous discovery motions seeking to compel the government’s production of various documents and other information, including the names of Khadr’s interrogators, communications between the Canadian and U.S. governments about Khadr, and records of investigations into prisoner abuse at Bagram when Khadr was held there. (Khadr alleges he was abused at Bagram by his interrogators and others, as reported in Human Rights First’s recent report, Tortured Justice.) In several instances, the lead prosecutor, Marine Major Jeff Groharing, made clear that the government had independently decided—without reviewing or even searching for the information sought—that the information would not be “helpful” to the defense, so there was no need to produce it. This position is based on a distorted interpretation of Rule 701 of the Rules for Military Commissions (which requires production of information that is “material to the preparation of the defense”) that contrasts sharply with the interpretation commonly given by military courts to an identical provision in the UCMJ. Army Colonel Peter Brownback, the military judge, strongly implied he intended to use the standard meaning of “materiality” in Khadr’s case.

Later, Groharing insisted that it could not possibly be “helpful” to the defense for Kuebler to travel to Afghanistan to collect evidence and interview potential witnesses, so there was no need to set a trial schedule that would allow Kuebler to do that. Whether or not it was the government’s intention, this line of argument suggested that the government believes it gets to design the defense case as well as its own. And all for the ostensible purpose of ensuring that Khadr gets a “speedy trial”—after having been imprisoned for years without having a trial or even being charged with a crime.

The hearing for Al-Darbi—who also alleges abuse by U.S. military personnel while he was held at Bagram—had its own variations on these themes. Al-Darbi’s detailed defense counsel, Army Lieutenant Colonel Brian Broyles, met with Al-Darbi for the first time earlier this week. Broyles actually traveled to Guantánamo to meet with Al-Darbi and his habeas counsel last month. Once Broyles and the habeas counsel arrived in Guantánamo, however, the staff judge advocate of the Joint Task Force that runs the detention operation ordered the lawyers not to have any contact with each other and barred their meeting with Al-Darbi. There is no known rule that mandates or even justifies these restrictions, and yesterday Army Colonel James Pohl, the military judge in the Al-Darbi case, made clear that the restrictions will not apply unless and until he is presented with an authoritative legal mandate requiring them.

Yesterday’s hearings actually ran fairly smoothly—certainly nothing like Tuesday’s hearing in the Jawad case. Nevertheless, they reinforced a number of recurring incongruities in the military commission proceedings:

• According to General Hartmann, the defense in military commission cases has the right to obtain evidence and to call witnesses, including expert witnesses. However, this right actually only includes a right to ask for evidence and witnesses, with the prosecution or the appointing authority deciding whether to accommodate the defense.
• Although military commission rules ostensibly exclude the admission of statements elicited by torture, the government has written and the prosecution seeks to apply the discovery rules so as to make it difficult, if not impossible, for the defense to prove torture.
• While the government has held some prisoners without trial for more than six years, and all of them for at least several years, once charges are issued, the prosecution nevertheless seeks to press the proceedings forward as quickly as possible in the name of the prisoners’ “speedy trial” rights, even at the expense of effective defense preparation.
• And while the government gives prisoners a right to counsel in military commission proceedings, it has erected and continues to devise substantial obstacles to the provision of effective assistance of counsel and to the formation of meaningful attorney-client relationships that are critical to mounting a real defense.

Notwithstanding the impediments to due process that are inherent in the design of the military commission system, in all three proceedings this week—Khadr and Al-Darbi yesterday, and Jawad on Tuesday—I witnessed military legal professionals trying to make the process more fair. Certainly the detailed military defense counsel, doing their best to effectively represent their clients, fit this description. But the military judges also revealed a willingness to rule against the government when necessary.

Nevertheless, this is not how or where these cases should be tried. They should be tried in regular civilian or military courts, applying standards and procedures that have stood the test of time, are broadly respected in the United States and throughout the world, and still provide the best prospect for bringing the perpetrators of 9/11 and other terrorist acts to justice.