President-elect Obama: It Doesn’t Gitmo Urgent Than This

Gabor Rona – Human Rights First’s International Legal Director – will be in Cuba to monitor the proceedings and report back on events as they unfold.

January 16, 2009: Next week, for the umpteenth time, a representative of Human Rights First (me) will embark on a trip that should not occur, to a destination that should not exist, to witness events that should not happen. But this time is different. All eyes at the military commissions in Guantánamo next week will not be on the accused, the lawyers, the judges, or the jailers. They will instead be focused on a podium in Washington, D.C., where, shortly after 10:00 a.m on January 20, President-elect Barack Obama either will, or will not, say the magic words: “Today, and as my first official act as President of the United States, I announce the immediate suspension of military commission trials at the U.S. detention facility in Guantánamo.” Of all the abuses of law, reason and morality by his predecessor, why should Obama take this one on first? The reasons are both practical and symbolic.

Obama can announce an end to torture and extraordinary rendition to countries where detainees are abused, but it will take time to unravel all the legal and institutional packaging by which the Bush Administration attempted to both deny and justify those policies. He can express his intention to investigate the abuses of the Bush Administration, and even, although it seems increasingly unlikely, to prosecute those who planned and ordered detainee torture and abuse, but the question of how is fraught. He can declare his intention to close the detention facility at Guantánamo, but it will take time to figure out what to do with the detainees – some suspected of serious terrorism offenses, some innocent of terrorist activity but tainted by famously irresponsible rhetoric of Bush Administration officials who branded them all as “the worst of the worst.”

But there’s one thing he can accomplish with little more than the time and strength it takes to say it. Of all the illegal, counterproductive and just plain irrational architecture that the Bush Administration has designed to combat terrorism, nothing is easier to bring to a screeching halt, and there is no better way to signal a break with the past than to suspend the Guantánamo military commissions.

The costs of even a brief delay are great. Within days after President-elect Obama takes office, the military commissions are slated to begin trying a child soldier for the first time in modern American history, contrary to the tenets of international law and common decency. Whether or not Omar Khadr is found guilty, the stain on the Obama Administration and on the American judicial system will be indelible. To put it in strictly legal terms, the harm in being tried by a flawed tribunal is not merely the risk of being found guilty. It is also in being subjected to an illegal process in the first place. This is not just one human rights advocate’s opinion. It is a fact of logic and law that has been articulated numerous times by the U.S. Supreme Court, including by one of its most outspokenly conservative members, Justice Antonin Scalia.

Since it is so easily accomplished, President-elect Obama’s inaugural announcement to suspend military commissions would be powerful evidence that he meant what he said in his application for the job that the majority of voters hired him to accomplish – to bring change to America. The message would be clear not only to all Americans, but the entire world, that he will act decisively to fulfill his stated commitment to end these illegal proceedings, to transfer the cases that should be prosecuted to the federal criminal justice system where they belong, and to begin the long march of returning his country to the rule of American and international law.

Race to Guilt in Guantánamo Threatens to Taint Justice for 9/11 Attacks

Devon Chaffee – Advocacy Counsel at Human Rights First – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, December 9, 2008: Yesterday's tumultuous military commissions proceedings in the trial of Khalid Sheikh Mohammed and four co-defendants kicked off with a bang. Within the first half-hour, Presiding Army Judge Col. Stephen Henley read aloud a joint letter submitted by the five defendants asking that all motions filed in their names be revoked and requesting the opportunity to plead guilty. They had signed the letter on November 4, 2008—the day Barack Obama was elected president—firing the starting gun in an urgent race against the clock to preserve the ability of the next administration to seek real justice in one of the most important capital cases in American history.

President-elect Obama has made his intention to close Guantánamo crystal clear. On the campaign trail and in his first post-election interview on “60 Minutes,” he repeated that closing the facility was a priority. During his campaign he also committed to opposing the Military Commissions Act, which governs the commission proceedings and which he voted against in September 2006. But if the commissions continue to rush forward, it could hamper the ability of the next administration to bring these cases to trial in ordinary federal courts and to obtain verdicts that all Americans could have confidence are fair and final.

Monday's proceedings were held in Guantánamo's "Expeditionary Legal Complex" or ELC, which, according to the testimony of Cpt. Patrick Michael McCarthy, was designed under close supervision of the commissions' Convening Authority specifically for the trial of the high-value detainees. Observers sat behind sound-proof glass, while the sound system periodically failed and the audio delay—instituted to protect classified information—grew longer and longer.

As the morning session progressed, two things became clear: 1) Judge Henley would not allow two of the defendants—Ramzi bin al Shibh and Mustafa Ahmed Adam al Hawsawi—to enter guilty pleas until they were declared competent to stand trial and 2) it is an open question whether the Military Commissions Act allows for a death penalty sentence in a case where the defendants plead guilty. In a courts-martial proceeding under the Uniform Code of Military Justice, unlike in federal criminal courts, a defendant is not permitted to plead guilty to "an offense for which the death penalty may be adjudged." The rules for guilty pleas in capital cases in the military commissions, however, remain unclear.

Nail-biting prosecutors were noticeably anxious as Mr. Mohammed and Judge Henley went back and forth about the potential death penalty limitations with Mr. Mohammed asking: "If we plea, is it true that we will not be able to be sentenced to death?" After Judge Henley said he could not answer that question, the three pro se defendants—Mr. Mohammed, Walid Muhammed Salih Mubarek bin Attash and Ali Abdul Aziz Ali—indicated that they wished to postpone their pleas, at least until their co-defendants' competency issues were resolved.

But the struggle to keep open the door to bringing these defendants to legitimate justice in our federal criminal justice system is not over. Judge Henley appears intent on pushing forward with the competency questions, denying Mr. bin al Shibh's defense counsel's motion to abate the proceedings and giving defense counsel less than 12 hours to respond whether the prosecution could produce a brief on certain evidentiary issues within 24 hours.

If the judge finds Mr. bin al Shibh and Mr. al Hawsawi competent to stand trial before January 20, then all five may again withdraw all outstanding motions and attempt to plead guilty. This would trigger an inquiry into the circumstances of their plea, which may or may not be resolved before President-elect Obama takes office.

The sense of urgency running through the prosecution team was plain. After the defendants expressed their intention to delay their guilty pleas, Judge Henley said he was inclined to hold off on briefing the death penalty issues until the competency issue was resolved. But when the chief prosecutor, Col. Robert Swann, insisted the government would have the brief ready as soon as it was needed, the judge set a submission deadline of December 21. An exacerbated CDR Suzanne Lachelier, defense counsel for Mr. bin al Shibh, on the other hand, adamantly told the commission that the discovery issues related to the competency claims could not conceivably be resolved before late January.

Allowing the discredited military commissions to move forward in the final weeks of the current administration is a mistake. President-elect Obama will need all available tools to responsibly close the detention facility. And closing the facility is critical to repairing the damage the unfair and inhumane detentions have caused to the United States’ reputation as a leader in humane treatment and due process standards. The commissions should not be rushing forward to conclude cases that could obstruct the ability of our next president to restore the moral authority of the United States and to seek real justice for those who commit crimes of terror.

A Bad Week for the Government at GITMO

Sharon Kelly – Human Rights First’s Elect to End Torture '08 Campaign Manager – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, November 3, 2008: You may have missed it in the frenzied press coverage of the final days of the presidential election, but last week the current administration’s military commission system at Guantánamo Bay continued its slide toward collapse.

On Tuesday, a judge at Guantánamo barred from court a confession given by Mohammed Jawad, who was arrested as a teenager by Afghan authorities who threatened his life and the lives of his family members -- threats amounting to torture, according to the judge’s ruling. A former prosecutor, Darrel Vandeveld, who recently resigned in protest over the government’s handling of Jawad’s case, said that the ruling means “it is now impossible to prosecute with any credibility." While the commissions’ head prosecutor, Col. Lawrence Morris, previously indicated that the government would rely on Mohammed Jawad’s post-capture confessions to make its case -- confessions which he claimed were made without duress -- he has yet to say whether Tuesday’s ruling will lead him to drop the charges.

On Wednesday, the military judge who heard the case of Salim Hamdan, Osama bin Laden’s driver, refused the government’s plea to “reconsider, reassemble, reinstruct and re-announce a sentence,” further cementing the jury’s sentence of Mr. Hamdan to serve an additional five months beyond the time he has already served. This light sentence was a slap in the face to the government, which has maintained that those detained at Guantánamo comprise the “worst of the worst”.

Finally, last week Ali Hamza al Bahlul, a man accused of acting as al Qaeda’s media secretary and propagandist, went on trial -- only the second trial to be conducted at Guantánamo. Even if al Bahlul is convicted and sentenced to serve a significant amount of time, his boycott of the proceedings means that we have yet to encounter an example of a robust use of the adversarial system leading to conviction and a stiff sentence – an end result greatly desired by the government to justify the existence of the commissions.

Here are some key details from the al Bahlul trial, which I spent the week observing:

• Three members of the “Lackawanna Six” -- remember them from the 2003 State of the Union address? -- testified that they had been shown al Bahlul’s video at an al Qaeda training camp in Afghanistan. The three said that the film’s call to take up arms against the United States made them realize that they were in over their heads at the camp and they subsequently returned home.

• Prosecution witnesses gave testimony about how pleasant the Camp X-Ray and Camp Delta facilities were. (Sure, in Camp X-Ray detainees were housed in cages, but it didn’t rain much and the weather was pretty much in the 80s . . .)

• The government showed two films to the jurors. First up was al Bahlul’s own film, The Destruction of the American Destroyer the U.S.S. Cole. To counter al Bahlul, the government reprised its budget film from the Hamdan case – The Al-Qaeda Plan – which, in its attempt to provide an overview of al Qaeda’s organization and aims, borrows liberally from al Bahlul’s film and features graphic images of the 9/11 attacks.

• The judge decided that the government must prove as an element of each underlying offense that al Bahlul was in fact an enemy combatant, significantly increasing the burden on the government.

In contrast to the ongoing Guantánamo debacle, this week in federal court Chuckie Taylor, who served as the head of his father’s security services during his bloody rule of Liberia, was convicted of torture under the anti-torture statute – a law the Justice Department under President Bush attempted to define out of existence with its misguided 2002 torture memo.

In short, it was a bad week for the Bush Administration and its dubious legal innovations. With the presidential election behind us next week, let’s hope we can begin to chart a way out of Guantánamo.

Secrecy and Restricted Access Damage Guantánamo’s Image and Effectiveness

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 26, 2008: Every courthouse in which I’ve observed the practice of law has them: court watchers. They are a group of people--virtually always elderly--who spend their days going from courtroom to courtroom watching events. Then they meet every day for lunch and discuss the day’s proceedings. They are symbolic of the openness of United States courts: anyone can enter, watch, and follow the court proceedings with minimal effort.

But the military commission hearings at Guantánamo Bay are different. I flew here on a 12-seat turbo-prop commercial airplane with no toilet. The plane wasn’t allowed to fly over mainland Cuba so it took 3 ½ hours to get here from Fort Lauderdale; a direct flight would’ve taken about an hour. I sleep in a tent on an abandoned airstrip. The tent is kept at what feels like sub-zero temperatures to discourage cat-sized “banana rats” and other unnamed critters from invading, while at the same time being so humid inside that it feels like you are sleeping in a wet ice box. I cannot go anywhere, at any time, without an escort, and I am not supposed to go anywhere, at any time, without going with the entire group of human rights observers who are here. I do not question why the military base has decided this is necessary for the base’s security, but of course one who makes that point presupposes that these proceedings should be held on a military base.

The public access problems here run much deeper than the small discomforts of life on the base and the inability of the “court watchers” easily to peruse the court proceedings. Despite the military’s claims that these proceedings are open, public access here pales in comparison to courts back home. Criminal proceedings in federal court are presumptively open. Anyone can enter the courtroom at virtually any time and stay as short or as long as one wishes. Transcripts are publicly available and, in significant cases, are typically available at the end of each court day. Written pleadings and court orders are publicly-available, and docket sheets are instantly updated online. Thus, the public, victims and their families, scholars, the entire media, and others can follow federal court proceedings as closely as they wish.

But Guantánamo Bay is different. Other than the accused, their lawyers, and court security, the only people in the courtrooms this week have been five representatives of human rights and civil liberties organizations, seven members of the media, and some government employees. (I’m told media attendance at the proceedings has been dropping precipitously, perhaps because of the costs (fiscal and otherwise) of coming here or perhaps because of the media’s constant need to report only on “new” news.”)

Getting access to written pleadings and motions and orders is extremely difficult. Lawyers are prohibited from sharing filed pleadings with anyone. And, although written pleadings are eventually posted on the Office of Military Commission website, the process is delayed and haphazard.

Moreover, there are no docket sheets for these cases. When a pleading is filed, it often takes months, according to defense lawyers, for it to be entered on a so-called “filing inventory.” These delayed inventories are piecemeal and incomplete docket sheet substitutes. Thus, it is impossible for a member of the public to keep fully abreast of court events through the written record. Instead, one must depend on the media – and often informal media connections at that – to learn about what is happening from day to day.

Additionally, the level of secrecy is extreme. In Guantánamo, events are presumptively classified or otherwise shielded. Witnesses this week virtually all testified under pseudonyms. And the secrecy mechanisms here are ad hoc, at best. Observers of the September 11 case listen to an audio feed of the events in the courtroom proceedings via a 30 - to 40-second tape delay, giving the observer a surreal time-travel experience. At one point, the audio feed of a dialogue between Khalid Sheikh Mohammed and the judge was terminated after he mentioned that Richard Nixon had written a book. (It was later acknowledged that cutting the audio had been a mistake, but we still never learned the title of the book). The following day, though, regarding a topic that surely was more sensitive than Nixon’s authorship, KSM spoke openly about his having been waterboarded and his co-defendants having been tortured.

Finally, in addition to the hurdles observers must overcome to attend, other people who are typically found in U.S. courtrooms are absent altogether. One must get clearance papers from the military to be here. Family members of the victims and the accused are not permitted to attend the hearings. One wonders whether either group will be allowed access to the trials.

Public access is not an academic issue. Every courthouse in which I’ve observed the practice of law has a public audience. In high-profile cases or those involving significant issues, the courtroom might be packed with media, family members of defendants and victims, and interested citizens. Indeed, even in low-profile cases, these same groups often appear, just in lower numbers. They are there because of the openness of United States courts, where anyone can enter, watch, and follow the court proceedings, with minimal effort. As the Supreme Court has stated, this openness “enhances the quality and safeguards the integrity of the factfinding process,” “fosters an appearance of fairness, thereby heightening public respect for the judicial process,” and “permits the public to participate in and serve as a check upon the judicial process-an essential component in our structure of self-government.” But not in Guantánamo Bay. And the price that is paid may be poor quality and low-integrity fact finding, the appearance of unfairness, and public disrespect for the process.

Translation Problems Hinder Military Commission Proceedings

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 24, 2008: It is a fundamental precept of American justice that an accused defendant must understand the proceedings against him. It is similarly fundamental that, when a defendant speaks during those proceedings, the court and jury must accurately hear and understand, and the record must accurately capture, what the defendant says. And it is fundamental that a defendant must be able to understand the proceedings so that he may assist in his defense. Each of these principles is being violated in the military commission proceedings at Guantánamo Bay.

In criminal proceedings in federal district court, all interpreters must be qualified to interpret court proceedings contemporaneously. Federal court interpreters interpret facts and complicated legal concepts in real time. And, in my experience, federal court interpreters rarely have difficulty keeping up with the normal pace of proceedings or doing their jobs. When they do, the proceedings come to a halt, and competent interpreters are brought in. But this week in the military commission proceedings against the five men facing capital charges for allegedly participating and planning the September 11 attacks, it hasn’t worked that way.

Over the last two days, on too many occasions to count, interpreters could not keep up with events in court, or incorrectly interpreted what was being said. At least some of these interpreters -- who are shielded from public view and whose identities and credentials are kept secret -- are simply not up to their tasks. On Tuesday, defendants, defense lawyers, and defense interpreters (who have the task of facilitating lawyer-client communication) consistently objected that the interpreters had lost track of or inaccurately interpreted the proceedings. At one point, one defendant’s statement was interpreted into English as the nonsensical: “In the beginning of the timing of the laws I said there is no difficulties base [sic].” At another point, in a moment reminiscent of Monday night’s enlistment of help from defendant Ramzi bin al-Shibh’s four co-defendants to secure his voluntary appearance in court, defendant Ali Abdul Aziz Ali (who speaks excellent English) corrected the interpreter’s version of defendant Mustafa Ahmed Adam Al Hawsawi’s statement. Ultimately, it seemed, the court interpreter changed his or her interpretation to agree with Ali. In yet another instance, “top secret” was interpreted as “very private.” In a setting where classified information dominates, such an error completely misrepresents the proceedings.

Defense lawyers are aghast. At a post-hearing press conference Tuesday night, Major Jon Jackson, counsel to Al Hawsawi, described himself as “extremely troubled by the translator/interpreter problems” and accused the government of trying the 9/11 capital cases “on the cheap.” Civilian counsel to Al Hawsawi, Nina Ginsberg, estimated that her client did not understand 25% of what was said in court that day. Ginsberg further stated that, according to the defense team’s interpreter, one-half of what Al Hawsawi said in court was not accurately interpreted. And it was not as if Al Hawsawi was attempting to communicate on trivial topics. In an extended colloquy with Military Judge Marine Col. Ralph Kohlmann, Al Hawsawi – who, unlike some of the other 9/11 defendants, seems genuinely to be considering having a lawyer represent him – attempted to ask probing questions to Judge Kohlmann about the duties and obligations of defense counsel, the contrasting dynamic inherent in pro se litigation, classified information and discovery, and attorney-client privilege. Because he and the judge were speaking two different languages without comprehensible interpretation, the discussion led nowhere. Thus Al Hawsawi was left uninformed about his fundamental choice whether to accept appointed counsel or represent himself, and a chance to overcome a barrier plaguing these proceedings – the ability to get defendants to trust their appointed counsel – was lost.

In an attempt to rectify the situation, Al Hawsawi’s attorneys have requested a stay of the proceedings to allow the government to hire better interpreters. Their motion-- which is not publicly available due to Byzantine public access procedures here but was described during Tuesday night’s press conference--includes an affidavit from the defense team interpreter detailing a series of material errors in interpretation that have occurred. The motion to stay has not been granted; instead the defense teams have been instructed to raise their hands when the interpretation process goes awry. Exasperated, defense counsel finally asked the judge on Tuesday to order the government to prepare daily transcripts in English and Arabic. This motion is unlikely to be granted, and frankly would be unnecessary if the interpreters could simply do their jobs.

The judge’s other purported remedy is to constantly remind the lawyers and the defendants to speak slowly. Thus the proceedings sometimes occur in a halting, robotic incantation. The judge and most defense lawyers often speak in clauses, not sentences or paragraphs. Aside from sometimes being difficult to understand, even when spoken in English, these parts of the proceedings are deathly slow and inefficient. Even when spoken at half-speed, though, the interpreters still sometimes get it wrong.

Other international law tribunals handle this issue far more effectively. At Tuesday night’s press conference, Major Jackson pointed out that, in the International Criminal Tribunal for the former Yugoslavia, computers are used to provide real-time translations that place side-by-side transcripts in both the official language of the proceeding and the defendant’s native language. Jackson stated that the military commissions could have used a similar system, developed at The College of William & Mary, but did not.

If this problem is not fixed in Guantánamo, the proceedings will not be accurately interpreted. The defendants will not understand the proceedings. The court and the jurors will not accurately be told, and the record will not accurately capture, what the defendants say. And the defendants will not meaningfully participate in their defense.

The result would be a travesty.

Bin al Shibh Appears in Court but Legal Uncertainties Loom

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 23, 2008: Yesterday, Military Judge Marine Col. Ralph Kohlmann held a pretrial hearing for the five defendants facing capital charges in connection with the September 11 attacks. One of the defendants, Ramzi bin al Shibh, refused to leave his cell to attend the hearing. By the end of the day—largely occupied by legal wrangling over how to make bin al Shibh appear—Judge Kohlmann ordered that bin al Shibh be brought to court the following day, by force if necessary.

The hearing revealed an odd internal split among government lawyers. The prosecution’s position was that bin al Shibh should be forced to appear. But the detention facility commander (and JTF Gitmo lawyers) apparently reasoned that bin al Shibh could not be forced to attend absent a court order, thus shifting to the court the obligation–and the blame and accountability–for any “forcible extraction” of bin al Shibh from his cell. The defense, seeking to avoid a “forcible extraction,” asked the judge to adjourn all proceedings against bin al Shibh pending a competency evaluation. They assert he has severe mental health issues, which have been exacerbated by the use of psychotropic drugs and by his extreme confinement conditions, and which they further imply may stem partly from the torture bin al Shibh alleges he endured.

In a bizarre turn of events reflecting the ad hoc nature of the military commission system, bin al Shibh’s four co-defendants were enlisted in the court’s effort to secure his presence. The court approved a request by the lead defendant, Khalid Sheikh Mohammed to write a note to bin al Shibh. Ultimately, all four of bin al Shibh’s co-defendants wrote separate notes, each signed by all the others. The notes urged bin al Shibh to come to court, pointed out that his absence had slowed the proceedings (in fact, the judge suggested that if bin al Shibh persisted in refusing to participate, he would consider severing his case from the others’), told him that all five defendants should remain together in one case, and advised him to come to court voluntarily in order to avoid forcible removal from his cell.

In federal court, criminal defendants who refuse to come to court may be compelled to appear. Bench warrants may be issued for defendants who have been released on bail, and federal marshals – on their own or at court order or suggestion – may secure the appearance of defendants in pretrial detention, whether or not the defendants wish to appear. But in Guantánamo, where rules of law are created each day, a defendant’s co-conspirators are enlisted in the effort to secure his appearance.

But the comparison between federal courts and military commissions may not be tenable in this context. Compelling a defendant to appear in federal court is justified because defendants receive the full gamut of procedural and substantive protections, and they are not typically subjected to abusive interrogations or extreme conditions of confinement. But in Guantánamo—where many detainees have made allegations of torture and abuse, and some have experienced near-total isolation for almost seven years—compelling a defendant’s appearance in court has a different connotation.

Bin al Shibh’s attorneys suggest in their written pleadings that his fragile mental condition may be the result of torture. The Bush Administration has confirmed the use of “alternative” interrogation techniques on the high-value detainees held in secret CIA custody. In addition, reportedly a former detainee who was held in the cell next to bin al Shibh during his detention in Jordan alleges that bin al Shibh accused Jordanian officials of subjecting him to electric shock, sleep deprivation and forced nudity. If some or all these allegations about bin al Shibh’s treatment are true, then compelling him to come to court – likely transported in shackles and wearing a black hood over his head – may be so mentally and psychologically traumatic that the court resorted to enlisting the “cooperation” of his co-conspirators in encouraging him to voluntarily appear.

The peer pressure exerted by bin al Shibh’s co-defendants was effective. Bin al Shibh voluntarily reported to court early this morning and sat with his co-defendants without wearing shackles or handcuffs. In fact, he used his appearance to defend his mental competence and to unleash a tirade against his attorneys, accusing them of lying to him and ignoring his wishes.

Bin al Shibh’s outburst highlights a central problem with these proceedings. Although Judge Kohlmann may have the power to force bin al Shibh to appear in court, he cannot compel bin al Shibh to accept counsel. Given the length of time bin al Shibh has been detained, and the allegations of torture he has made, it should come as no surprise that his attorneys may have difficulty gaining his confidence and trust.

DoD Reassigns Hartmann / Military Commissions Remain Scarred

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 22, 2008: I arrived in Guantánamo Bay on Saturday night, just as the Washington Post reported that Air Force Brigadier General Thomas W. Hartmann was being removed from his position as the Legal Advisor to the Convening Authority for the military commission proceedings. The move followed decisions by military judges in three separate cases barring Gen. Hartmann from further participation in various aspects of the commission proceedings. The judges found Gen. Hartmann had demonstrated a lack of objectivity and a pro-prosecution bias.

Cases in Guantánamo are prosecuted by the Office of the Chief Prosecutor (“OCP”). The Convening Authority (“CA”) is a position that exists generally in military court martial proceedings, but that was not included when Congress established the Guantánamo military commission structure. Instead, the Secretary of Defense created by regulation the CA position to represent the Secretary in the military commission proceedings.

Gen. Hartmann was the CA’s chief legal adviser. The CA and her staff are required to exercise a neutral role in the commissions, overseeing but not dictating the work of prosecutors and allocating resources – for example, appointing prosecutors and defense lawyers and allocating funds to hire experts -- to both the prosecution and defense.

The CA possesses a hybrid of executive and judicial power, and more: she determines whether charges will be brought after receiving a recommendation from the OCP; she appoints jurors (who adjudicate guilt and innocence and who impose sentence); and, upon conviction, she has the power to approve, reduce, or set aside a sentence. Because the CA possesses these multiple roles, and because of a historical concern over improper influence being imposed in court martial proceedings down the chain of command, improper influence by the CA is prohibited. The CA and her agents cannot unlawfully influence exercises of discretion by the OCP.

Defense lawyers allege that Gen. Hartmann improperly interfered with the OCP’s exercise of prosecutorial discretion by pressing prosecutors to move particular cases to trial quickly and, over their objections, to use evidence obtained from coercive interrogations. They rely heavily on allegations by former Chief Prosecutor Colonel Morris Davis, who resigned in protest after experiencing what he says was a series of improper efforts to influence his office’s decisions. Defense lawyers imply that Gen. Hartmann took these actions as part of an effort by political appointees, including Defense Department General Counsel William J. Haynes, to improperly influence the proceedings.

Defense counsel contend that Congress did not intend for the CA to have power over the OCP. They allege that, in the Military Commissions Act (“MCA”), Congress created the OCP but deliberately omitted reference to a CA. They argue that this, in conjunction with a provision in the MCA that “[n]o person may attempt . . . by any unauthorized means, [to] influence . . . the exercise of professional judgment by trial counsel or defense counsel,” demonstrates Congress’ intention to insulate the OCP from political influence by anyone, including the CA. They further imply that the Secretary of Defense created the CA so that the Secretary and other political appointees could improperly influence career and line military prosecutors. Although the military judges denied the defense motions to dismiss based on these allegations, they found that Gen. Hartmann had displayed a bias necessitating his disqualification from the cases.

As my plane arrived in Guantánamo and I awaited my first glimpse of the base, I read about Gen. Hartmann’s conduct and his reassignment. I couldn’t help but reflect upon my former career as a federal prosecutor. Toward the end of my twelve-year tenure, the sad news of the Bush Administration’s politicization of the Justice Department became widely known. The disgrace of Monica Goodling and Kyle Sampson occupying and abusing high-level positions of power scarred the Justice Department and its public image. The Department’s greatest assets include the public’s confidence that it is a government entity free from politics and dedicated to doing justice, above all else. The improper activities of Goodling and Sampson, and the indifference to or sanctioning of their activities by Alberto Gonzales, devalued those assets. The Department and its dedicated public servants are still working to repair them.

One must wonder whether Gen. Hartmann’s actions will cause similar scars on the military commission proceedings. One must wonder whether, regardless of the best efforts of career and line prosecutors like Col. Davis, the American people and the world will regard these proceedings as unjust and devoid of moral and legal foundations.

The GTMO Incentive Program

Nicole Barrett - Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia - is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, August 18, 2008: In dramatic testimony last week at Guantánamo, the story of Mohammed Jawad’s abuse by U.S. military personnel continued to unfold. Jawad alleges he was first tortured while in detention at the Bagram Air Base in Afghanistan and then again at Guantánamo in May 2004. Special Agent Angela Birt, a former Army Criminal Investigation Division investigator, testified that Jawad’s description of his mistreatment at Bagram fit with the pattern of abuse that she uncovered while investigating the homicides of two Bagram detainees. While the prosecution made a feeble attempt to cast doubt on Jawad’s mistreatment at Bagram, it conceded the existence of the Guantánamo “frequent flyer” program, which the defense contended featured as an integral part of Jawad’s abuse.

In fact, at least one U.S. military official not only conceded the existence of the program, but he positively endorsed it. Army Major Jason Orlich, formerly in the joint detention operations group and then the interrogations group at Guantánamo, enthusiastically described the frequent flyer program, in classic Orwellian doublethink, as an “incentive program.” Orlich confirmed that, under the program, detainees were moved from cell to cell up to eight times a day, or every three hours, following a “Discipline Synch Matrix.” The goal was to keep detainees “off balance” and prevent the “worst of the worst” from organizing. For detainees like Jawad, who were held in certain camps, the program was “standard operating procedure,” approved by senior leadership. Orlich testified that the program was “humane,” “promoted good behavior,” and protected the military police. He denied that the program caused sleep deprivation. (The Guantánamo military leadership appears not to have shared Orlich’s sanguine view of the program. They thought it was worth hiding).

The defense argued that the frequent flyer program as applied to Jawad was torture because it caused extreme sleep deprivation and disorientation. Prison records show that Jawad was moved 112 times over 14 days in May 2004.

What is the government’s official view of such practices? A Department of Defense working group report of April 4, 2003 considers the legal parameters of torture when evaluating possible interrogation techniques. The report says that sleep deprivation holds “problematic aspects that cannot be eliminated by procedural safeguards.” It further notes that the Committee against Torture has interpreted sleep deprivation for prolonged periods to constitute cruel, inhuman, or degrading treatment and torture under the Convention against Torture. The report concludes that sleep deprivation is “not to exceed 4 days in succession.” Complaints by FBI agents of “improperly used sleep deprivation against detainees” led to an internal investigation, called the Schmidt Report, which concluded that no action was needed as the “JTF-GTMO [Joint Task Force Guantánamo] Commander terminated the frequent flyer cell movement program upon his arrival in March 04.” In Jawad’s June 2008 hearings, General Hood testified that he ordered the frequent flyer program terminated.

But Major Orlich’s testimony before the commission last week suggests otherwise. Orlich said that, as of April 2005, the frequent flyer program was ongoing and that he was not aware of any order to stop the program. He also confirmed that “all” of the relevant military leadership, including General Hood and General Cannon, knew of the program, and no one questioned the program’s legality.

Unfortunately, details on how many detainees were in this program were not revealed. Orlich’s estimate, however, that the relevant camps contained approximately 350-400 people, combined with his testimony that the frequent flyer program was “standard operating procedure,” suggests that the number of detainees subject to the program may be significantly greater than previously thought. High numbers seem even more likely when considering that Jawad’s disciplinary records—which show “cross-block talking” as his worst offense—landed him in the program.

Major Frakt closed his presentation with an impassioned and scathing denunciation of Jawad’s treatment at Bagram and Guantánamo. He requested that Jawad’s attempted murder charge be dismissed on the ground of “outrageous government conduct.” The prosecution’s response? “Sworn enemies of the United States…have to be held in conditions that protect Americans.” It is hard to see any relationship between routine abuse of detainees and the protection of American lives.

Representing the Unwilling

Nicole Barrett - Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia - is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, August 15, 2008: The proceedings against Ali Hamza Ahmed Sulayman al Bahlul, Osama bin Laden’s alleged media director, were supposed to begin at 9 am. At about 9:10 am, various military officers and personnel began milling about, walking in and out of the courtroom. One officer whispered to another, “He wants his boycott sign. We can’t find it.”

At 9:40 am, al Bahlul entered the courtroom escorted by four young guards. He wore a baggy beige shirt, baggy beige pants and flip-flops. The guards holding his arms were wearing plastic surgical gloves. Air Force Major David Frakt, al Bahlul’s standby counsel, sat at the defense table, a change from the May 7, 2008 proceedings, when al Bahlul sat alone at the defense table and motioned to Frakt to sit when he stood to address the court.

Judge Ronald Gregory entered the room and introduced himself as the new judge replacing Judge Brownback, who recently retired. The proceedings began in a routine manner; even the Arabic translation that was broadcast into the courtroom at al Bahlul’s request seemed to be running smoothly.

Then al Bahlul began to speak, and the proceedings changed. He had several complaints for the judge. Al Bahlul wanted the original Arabic version of his boycott sign that he had created in 2006 and that listed his nine “political and legal reasons” for boycotting the military commission proceedings. Prosecutor Army Major Daniel Cowhig said they could not find the sign, although they had been looking for the past half hour. He suggested it might take a day or two to find it. (Because al Bahlul was pro se when he made the sign, it is unclear why the prosecution would have it, as it could arguably be attorney work-product). Al Bahlul asked, “If such a document is lost, what kind of court is this?”

Al Bahlul asked to return to his cell until the original sign was returned to him. Judge Gregory began to advise al Bahlul of the consequences of waiving his right to be present, when al Bahlul interrupted to state that he wanted to return to the courtroom only to hear the final sentence of his trial. He refused to permit Frakt to represent him and asked, “How can I accept this law?”

Al Bahlul offered that, after the lost document was found, it would “facilitate the settlement to take place with the judge to have a fast trial.” Then al Bahlul reasserted his desire to be absent from all sessions except sentencing, adding,“I don’t really care how you will exercise this legal circus.”

Judge Gregory told al Bahlul that, by absenting himself from the proceedings, he would terminate his right to represent himself. Al Bahlul was unmoved. He responded by asking the judge to withdraw his habeas corpus petition, filed in federal court by his cousin as a “next friend” petition. He addressed Judge Gregory, saying, “I, from this place, ask you to cancel the file that is personal to me.”

Ultimately, the judge sent al Bahlul back to his cell, terminated his pro se status and appointed Frakt as his defense counsel. Frakt said he had spoken to al Bahlul before the hearing and told al Bahlul that he would defend him in the manner he desired. Frakt said that al Bahlul had refused to agree to future meetings with Frakt and told Frakt not to do any work on his behalf.

At this point, the pace quickened. Frakt waived all pre-trial motions and stated he was available to go to trial at any time. The prosecution asked whether Frakt was waiving discovery motions. Frakt confirmed that, while the government must still prove its case and provide required discovery, he would seek no additional documents. The proceedings ended without setting a schedule.

Al Bahlul is not alone in his desire to represent himself and boycott his own trial. Several others charged under the Military Commissions Act (MCA) have followed the same tack, including Binyam Ahmed Muhammad, an Ethiopian, and Ghassan Abdullah al Sharbi, a Saudi, both accused of conspiring with al Qaeda. Defense attorneys on these cases have found themselves in a similar conundrum to the one that Frakt now faces. Generally, U.S. domestic and international laws support a detainee’s right to represent himself or to boycott a trial, but exercising both rights at the same time appears to be a new phenomenon. While Congress intensively debated issues of boycott and self-representation in MCA negotiations in 2006, many questions went unresolved.

Some of these questions were raised by today’s hearings. Is Frakt under any obligation to put on a defense case for al Bahlul? This is not a death penalty case, where a defense is required, and the MCA does not appear to require a defense case. What if potentially exculpatory documents turn up, including documents showing that al Bahlul was mistreated or tortured while in U.S. custody? Such evidence is thought to exist. If al Bahlul was tortured, might he lack the mental capacity to waive a defense? MCA Rule 706 allows for an inquiry into the mental capacity of the accused, but the consequences of an incapacity finding are not spelled out.

With already intense criticism of existing due process flaws in the military commission process, wouldn’t a no-defense defense only confirm the view that commission proceedings are designed to convict, rather than provide a fair trial? If the judge orders the defense to put on a case in the interest of justice, what would happen if Frakt refused to follow orders? Does a no-defense defense at the client’s request provide grounds for an ineffective assistance of counsel appeal?

After the proceedings, Major Frakt acknowledged the complexity of the situation. He said that, while he was going to seek advice from his supervisor and from the New Jersey state bar, “I think my obligation is to do what he wants -- nothing….Ali al Bahlul is my boss.”

Not All Crimes are War Crimes

Nicole Barrett - Human Rights First volunteer consultant and former trial attorney at the International Criminal Tribunal for the former Yugoslavia - is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

Guantánamo Bay, August 14, 2008: Those experienced with the law of war know that, when charges are brought before a military commission or war crimes tribunal, these courts must ask and answer several basic questions to see whether the law of war actually applies to the case. Did the alleged acts occur during war? If not, they are not war crimes. Was the alleged wrongdoer a combatant or a civilian? If a civilian, the law of war typically does not apply if a combatant was targeted; domestic criminal law does. If the wrongdoer was a combatant, were the victims also combatants? If so, seemingly wrongful acts, including killing, may be lawful under certain circumstances.

Such basic questions were front and center in the military commission proceedings of Mohammad Jawad at Guantánamo Bay this week. The government’s perplexing stance, however, is that these questions need not be asked or answered for Jawad’s case to proceed. In fact, the government seems to think it unnecessary to charge facts alleging a war crime in order to prosecute Jawad for one.

In some respects, you cannot blame the prosecutors for being confused, as the statute that they are relying on, the Military Commissions Act of 2006 (MCA), repeatedly misapplies the law of war. The MCA ignores the fundamental distinctions between the law applicable in law enforcement contexts, non-international armed conflicts, and inter-state conflicts and inaccurately implies that the law of war automatically applies to all global counterterrorist operations. In short, the MCA selectively borrows humanitarian law privileges without granting the corresponding protections.

Further, while the MCA says that it is consistent with the law of war, the statute proclaims several acts to be war crimes that have never been so designated. Several Guantánamo detainees have been charged with conspiracy. But the U.S. Supreme Court in Hamdan said that conspiracy is not a war crime. Similarly, hijacking and providing material support for terrorism – also recurrent on military commission charge sheets – are not historical war crimes, although the MCA suggests that they are.

With such uncertainty about what is and what is not a war crime, calling an expert in the law of war would seem a priority. Getting this expert to the hearing, however, was no easy matter. Jawad’s defense counsel, Major David Frakt, reports that the prosecution objected to Professor Madeline Morris’s designation as an expert despite the fact that she currently advises the U.S. Secretary of State, and has previously advised the Department of State, the Department of Defense and the Secretary of the Army on international law and law of war issues. When Professor Morris finally reached the courtroom yesterday, her affidavit already written but her status still in doubt, Judge Henley finally recognized her as an expert.

Professor Morris laid out the basics for why the military commission has neither personal nor subject matter jurisdiction over Jawad. Personal jurisdiction does not exist, she said, because MCA charges can only be brought against “unlawful enemy combatants,” and the commission has no way of knowing whether Jawad falls into this category. Under the Third Geneva Convention and Additional Protocol I, a person who takes part in hostilities is presumed to be a lawful combatant until he is found to be an unlawful combatant by a competent tribunal composed of more than one person. (See API of the Geneva Conventions, Articles 45(1) and 45(2), which the U.S. has officially recognized as customary international law and Article 5 of Geneva Convention III). Because Jawad never received such a determination — commonly referred to as an Article 5 hearing — the MCA does not apply. Prof. Morris pointed out that the Article 5 hearing held in Salim Hamdan’s case was invalid because it was based on a waiver by the defense, but POW rights under the Geneva Conventions cannot be waived.

Prof. Morris’s simpler argument was on subject matter jurisdiction. She effectively eliminated the only charge against Jawad by demonstrating that the facts underlying his attempted murder charge cannot be a war crime. The prosecution alleges that Jawad threw a grenade – a lawful weapon under the law of war – into a U.S. military vehicle in Kabul, Afghanistan carrying two soldiers and their translator – all lawful targets under the law of war. Because Jawad is accused of using a lawful weapon against lawful targets, he might have committed a domestic crime, but certainly not a war crime.

The prosecution, grasping at straws on cross-examination, tried a few arguments, but ultimately fell flat. They argued that things were different now because the commission was dealing with “new law,” mentioned that there were differing views on the law of war, and finally suggested that Jawad’s alleged act might be perfidy — one of the MCA offenses typically used for spying and sabotage — which they had not even charged in this case.

The Jawad commission reconvenes on September 25, 2008. The first decision made will be whether the commission should hear the case at all.