“I will leave in your hands the camel and all that it carries”

Frank Kendall – Human Rights First volunteer consultant – 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, April 10, 2008: I lost a business colleague on one of the airplanes that was flown into the World Trade Center. During my government career, I worked extensively with the Defense Intelligence Agency, which bore the brunt of losses experienced in the attack on the Pentagon. I have no problem with the concept of bringing al Qaeda to justice.

But I believe that justice must be obtained in a manner consistent with America’s long-standing position of leadership on human rights and with the core values embedded in our Constitution, our legal system, and our international obligations. We also should not forget that the prisoners at Guantánamo have not been found guilty of anything yet. As one well known American politician put it, “this isn’t about who they are; it’s about who we are.”

Today’s proceedings did nothing to alleviate my concerns about the trials conducted under the Military Commissions Act (MCA). The substantive legal issues that today’s events highlighted include: the impossibility of providing adequate legal representation, the court’s inability to enforce a defendant’s rights, and the lack of adequate record to support an appeal. I also feel compelled to note the appearance of illegitimacy, which I believe would plague any results that come out of this system as it is being implemented.

Today’s defendant: Ibrahim al Qosi

Mr. al Qosi is a Sudanese national, aged 47, although he looks older. He entered the courtroom wearing the white jump suit of a “compliant” detainee and a knitted white skull cap. He is full bearded with a mix of black and grey. As he came in under close physical escort by three MPs, he scanned the faces of the press and observers sitting directly behind the defense table. Mr. Qosi seemed alert and curious about his surroundings. He was cooperative throughout the hearing. He insisted on reading a prepared statement and ultimately said he would boycott the proceedings. He never once communicated with his detailed military attorney, Navy Commander Lachelier.

Mr. al Qosi is charged with conspiracy and providing material support for terrorism. The charge sheet alleges that he was in Afghanistan with al Qaeda from about 1996 through 2001. He is referred to as a bodyguard and driver for Osama bin Laden and other al Qaeda members and as having provided other services. (A number of prisoners are designated as bodyguards or drivers for bin Laden. It is not clear whether this implies a close relationship or merely that the men provided security at the al Qaeda compound and elsewhere). Al Qosi is alleged to have fought as a member of a mortar crew near Kabul between 1998 and 2001. In the fall of 2001, he is said to have left Kandahar with other security people and accompanied bin Laden until he arrived in Tora Bora. He is not charged with any specific acts of terrorism. The government is seeking life in prison for Mr. Qosi.

Summary of the proceedings

At today’s arraignment, Mr. al Qosi became the third defendant to refuse to participate in the proceedings, which he considers illegitimate. As was the case yesterday, there were major issues with the translation from Arabic to English, including the inability to hear the translator and numerous inaccuracies. (At each break in the hearing, an Arabic speaking NGO representative and an Arabic speaking member of the press discussed the many inaccuracies in the translation). Eventually the judge questioned Mr. al Qosi to determine whether he understood his rights and wanted legal representation. Like Mr. al Darbi, Mr. al Qosi refused to recognize the legitimacy of the court, rejected the representation offered him, and refused to participate in the proceedings. He was escorted from the courtroom, after which the court reconvened to deal with scheduling and procedural matters. During the course of the proceedings, Mr. al Qosi’s detailed military defense counsel attempted to raise a number of issues without success.

Mr. al Qosi’s Statement: “I reject this unjust and illegal court…”

Mr. al Qosi had brought a written statement with him, which he repeatedly asked permission to read at the same time as the judge was trying to question him about his rights under the MCA. Eventually the judge had her questions answered for the record, and Mr. al Qosi was permitted to read his statement. Apparently, Mr. al Qosi had been preparing the statement for a long time. It was delivered calmly and eloquently.

Here is a summary:

Mr. al Qosi said he regarded the proceedings as illegitimate and unjust. He stated that, just as the September 11 attacks had been reported as a military and political success by al Jazeera, exposing America’s weaknesses, so too was the military commissions system an exposure of United States hypocrisy about the rule of law. He went on to state that it was a lie that the United States was a protector of human rights.

Mr. al Qosi compared his treatment to the British and Australian citizens who had received short sentences or simply been sent home as evidence of discriminatory treatment. He accused the United States of discriminating in particular against men from “what the United States calls third world countries.”

Mr. al Qosi also accused the United States of having failed in its first attempt to try him when the Supreme Court overturned the first set of military commission rules (leading to the MCA and the current set of military commission rules). Mr. Qosi asserted that the new military commissions were just an attempt to create rules of evidence and crimes after the fact so that he and others could be tried.

Mr. al Qosi closed with a story from Moses and the Pharaoh in which the Pharaoh had threatened to cut off the hands and legs of Moses’ people. “Do whatever you wish to do. This life will pass by. I remind you that one day we will all stand before together before the same court, before God.” Finally he said, “I will boycott this court, and I will leave the field to you, and I will leave in your hands the camel and all it carries so you can do everything as you wish.”

Highlighted Issues from Today’s Hearing

The text of the MCA asserts that the military commissions system complies with the requirement under Common Article 3 of the Geneva Conventions that courts must be “regularly constituted courts affording all the judicial guarantees that are recognized as indispensable by civilized peoples.” I have written in earlier posts about some of the ways in which the MCA falls short of this standard. I would like to discuss three ways that were particularly apparent during today’s hearing: (1) the impossibility of providing adequate representation, (2) the judge’s inability to enforce the defendant’s rights, and (3) the lack of an adequate record to support an appeal.

The Impossibility of Providing Adequate Representation

Mr. al Qosi’s defense lawyer, Cmdr. Lachelier said today that she has been given inadequate access to her client, as a result of which she has been unable to verify whether or not he wants to participate in the proceedings or to develop a relationship of trust with him. Her requests to meet with Mr. al Qosi in his cell or to communicate with him from outside his cell have all been denied for “security reasons.” Her description of the communication process was not disputed. She writes a note to Mr. al Qosi, which the guards take and read to him. The guards verbally report his responses to her; he is not permitted to write responses of his own. Additionally, the guards are only willing to deliver one note per day. Cmdr. Lachelier was told that taking in more then one note a day would be “harassing” Mr. Qosi. Given these procedures, Cmdr. Lachelier has no way to personally confirm that her client refuses to meet with her and no way to develop a relationship that would gain her client’s trust so that he might accept her representation.

This is inadequate.

The judge’s inability to enforce the defendant’s rights

Cmdr. Lachelier asked the court to order that she be provided with direct access to her client. The following is the judge’s response: “I do not have the authority or the desire to alter the security procedures. You will use the normal procedures.”

Because the MCA is a new body of law, there is no precedent to guide judges as to their authority beyond the courtroom. There is no clear reason why the judge could not halt the proceedings until those responsible for security procedures found a way to provide attorney access. As an alternative, the judge could require that Mr. al Qosi be brought to the commission building holding cell to meet with his attorney. It is hard to see how a judge can conduct a fair trial and protect a defendant’s rights when the judge has no authority to enforce those rights.

The lack of adequate record to support an appeal

We learned today that there are no audio recordings being made of these proceedings. This may seem a small point, but any convictions under the military commission system will undoubtedly be appealed. An accurate record may be essential to an effective appeal. One defense counsel stated in my presence that his fundamental purpose in these proceedings, which he expects to result in a conviction under any circumstances, is to create a record for appeal before a federal court. I have already spoken of the difficulty with incorrect translations. Without an audio recording, it will be impossible to determine the correct translation of a defendant’s statements or whether the proceedings were adequately translated into the defendant’s language.

The lack of even the appearance of legitimacy

I have tried to confine my comments to legal issues, but it is hard not to consider the impression the military commissions proceedings are likely to create. Three defendants have now stated they will boycott their trials because they are illegitimate. Whether or not their decision to boycott is a strategic one, it does not diminish the evidence that supports their assertions. Two defense attorneys have said they may not be able to continue in their roles because it might be an ethics violation to act as someone’s representative despite his instructions not to do so. (Imagine the government having to detail defense attorneys based on whether their individual state licensing bars allow them to provide representation where it is explicitly forbidden by the client). Today a presiding judge said she had no authority to grant a defense attorney access to her client over the desires of the military command.

The camel and all that it carries are not very attractive.