Another Boycott at Guantánamo, Another Test for the Military Commission System

Deborah Colson – 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.

America tells the whole world that it has freedom and justice. I do not see that. . . There are almost 100 detainees here. We do not see any rights. You do not give us the least bit of humanity . . . Give me a just court. . . Try me with a just law.

—Salim Hamdan to Judge Keith Allred, Guantánamo Bay, April 29, 2008.

Guantánamo Bay, April 30, 2008: Salim Hamdan rejected the military commission process for the second time yesterday afternoon, asking that he be tried instead under a system of “just law.” Mr. Hamdan interrupted a pretrial hearing during which the parties were mired in technical legal arguments to plead with the judge to take a step back and evaluate the integrity of the process. His words were powerful and eloquent. He questioned why the government is trying him in a made-up system pursuant to made-up rules. And he observed that, even when he wins, he loses because the government repeatedly changes the rules midstream:

If you ask me the color of this table, I will tell you it’s white. You say, “it’s black.” I say, “no, it’s white.” You say, “no, it’s black.” I say fine, “it’s black.” You say no, it’s white.” This is the American government.

It is impossible to know why Mr. Hamdan finally gave up on the system yesterday after having cooperated with his attorneys and the court for so long. He made a less rigorous attempt to boycott on Monday morning, but eventually decided to stay. And he came to court yesterday morning dressed in a blazer and willing to listen. But he returned yesterday afternoon wearing his prison garb and waiting for an opportunity to address the judge: “May I speak to you for two minutes,” he said. “You did not ask me why I changed my clothes. Do you care to know?” Then Mr. Hamdan told the judge he had decided to boycott the trial and that he refused to have his attorneys speak for him in his absence.

At a press conference after the hearing, one of Mr. Hamdan’s lawyers said that seven years of confinement and the several rounds of wins and losses have left Mr. Hamdan feeling increasingly frustrated and depressed.

Some of the government’s arguments yesterday triggered a critique from Mr. Hamdan. At one point, the Department of Justice prosecutor John Murphy accused the defense team of basing its legal arguments on inapplicable laws—the Uniform Code of Military Justice, international law, and the United States Constitution. “This is not a military court-martial or a criminal prosecution in federal court,” said Mr. Murphy. “Here, we are in a wartime court.” And in this wartime court, he explained, the Military Commissions Act (MCA) applies. When Mr. Hamdan spoke, he sarcastically referred to the MCA as a “special law” and a “new law” that was “delivered” to Guantánamo from the halls of Congress. It is “the law of the American government, not the law of the United States.”

Both men are partially correct. The MCA does govern the military commission system. But the MCA is also a new law that was “delivered” to Guantánamo five years after Mr. Hamdan’s arrest. When Mr. Hamdan was captured in 2001, the MCA did not yet exist. The statute was not passed until 2006, following Mr. Hamdan’s victory before the Supreme Court in which he objected to the first military commission system, and the Court threw the system out.

Judge Allred told Mr. Hamdan that he should have “great faith in American law” given his Supreme Court victory. “You beat the United States once in our system with these attorneys who are with you today” said Judge Allred. “You won.”

“I didn’t win the case,” responded Mr. Hamdan.

Though the Supreme Court did rule in Mr. Hamdan’s favor, Mr. Hamdan’s perceived loss makes perfect sense. He was not released after the Supreme Court’s decision. Instead Congress enacted the MCA, and the government re-charged Mr. Hamdan under the new law.

Mr. Hamdan questioned the government’s decision to re-charge him under the MCA. He asked why the government created a military commission system when it could have tried him in an ordinary criminal court. And he asked why the attorneys and the court had spent so many months debating the meaning of the MCA when American law and international law could be applied.

Mr. Murphy invoked Mr. Hamdan’s “alien unlawful enemy combatant status” to justify the use of the military commission system and the application of the MCA. At “historic moments in our history,” said Mr. Murphy, “unique rules” must apply.

The years since the September 11 attacks undoubtedly are a unique period in this nation’s history. But prosecuting terrorist suspects is nothing new. In fact, dozens of terrorism cases were successfully prosecuted in United States federal courts prior to September 11, and dozens more have been prosecuted there since. Just fifteen men at Guantánamo have been criminally charged, and no military commission trials have even been held. Given that track record, Mr. Hamdan’s request to be tried in civilian court sounds like a much more promising idea.

Mr. Hamdan continued to boycott the proceedings this morning and refused even to appear in court. He is now the fourth Guantánamo prisoner to reject the military commission system. Recent accusations of political interference with the prosecutorial function, the MCA’s provisions authorizing the admission of coerced evidence, and the never-ending delays in prosecution are just several reasons why public confidence in the military commission system is at an all-time low. But there is no question it is bound to sink even lower if the government ends up trying a row of empty chairs.

Salim Ahmed Hamdan and Col. Morris Davis, v. Military Commission System

Deborah Colson – 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.

Guantánamo Bay, April 28, 2008: Prosecutors and criminal defendants rarely see eye to eye. But defendant Salim Ahmed Hamdan and former chief prosecutor Morris Davis agree on one thing: The military commission system is fundamentally flawed, and justice in Guantánamo is near impossible.

Mr. Hamdan

This is my second trip to Guantánamo to observe Mr. Hamdan’s case. I came to a pretrial hearing in February 2008, and I returned this week to listen to Mr. Hamdan’s defense counsel argue their motions to dismiss and suppress.

Mr. Hamdan, a 36-year old Yemeni citizen, was captured in Afghanistan in November 2001 and has been detained at Guantánamo for nearly six years. He is not charged with any offenses connected to the September 11 attacks and, in fact, the government acknowledges that he did not play any role in planning or executing those attacks. Rather the government accuses Mr. Hamdan of joining al Qaeda, working as Osama bin Laden’s personal driver and armed bodyguard, and transporting missiles for use against American soldiers.

Mr. Hamdan’s lawyers acknowledge that he worked as bin Laden’s driver, but they say he was never a member of al Qaeda and never conspired to engage in any terrorist acts.

Today Mr. Hamdan became the fourth Guantánamo prisoner to question the legitimacy of the military commission system and to refuse to participate in the proceedings against him. (The other prisoners who have rejected the system are Ahmed al Darbi, Mohammed Jawad, and Ibrahim al Qosi). Mr. Hamdan’s refusal to participate was relatively short lived – he returned to the courtroom after a lengthy lunch break and agreed to remain there. But the words he used this morning to condemn the system could not have been clearer:

The animal has rights or not? My question is the animal has rights or not, but the human being doesn’t have rights… I’m detained and I don’t have any rights. You tell me about the law. Where is the law? You tell me the law has changed. Where is the law? I refuse to participate in this. I refuse the lawyers on my behalf. And I refuse the lawyers to speak outside my presence.

At a press conference following today’s hearing, Mr. Hamdan’s lawyers said their client has no confidence in a just result. And no wonder. Up to this point, victory has done Mr. Hamdan virtually no good. In 2006, his case against the first military commission system established by President Bush made it all the way to the Supreme Court, where he won. The Supreme Court held that the military commissions violated international and U.S. military law. Following the Supreme Court’s decision, Congress established a new system under the Military Commissions Act of 2006 (“MCA”). Shortly thereafter, Mr. Hamdan’s original habeas petition was dismissed and Mr. Hamdan was transferred—with no explanation—from a medium-security facility to solitary confinement, where he has remained ever since. For the past sixteen months, Mr. Hamdan has had practically no human contact and little access to natural light and air. So it should come as no surprise that he is asking “where is the law?”

Colonel Morris Davis

Mr. Hamdan’s critique was not the only indictment of the military commission system we heard today. In a highly anticipated appearance this afternoon, former chief prosecutor Colonel Morris Davis testified on behalf of the defense, stating that the system is politically rigged to achieve convictions at all costs.

Col. Davis served as the chief prosecutor for the office of military commissions for just over two years until submitting his resignation in October 2007. He has spoken publicly about the flaws in the system many times since then, and most of the allegations he made on the stand today had already been reported in the press.

But his testimony was remarkable nonetheless. Until several months before he resigned, Col. Davis was a staunch defender of the military commission system. In fact, in June 2007, he published an op-ed in the New York Times in which he called Guantánamo “a clean, safe and humane place for enemy combatants” and stated that “the Military Commissions Act provides a fair process to adjudicate the guilt or innocence of those alleged to have committed crimes.”

Col. Davis also has no qualms about the case against Mr. Hamdan. He stated today that he participated in writing the charges against Mr. Hamdan and believes those charges are “warranted by the evidence.”

And yet this former chief prosecutor took the stand and testified under oath on behalf of Mr. Hamdan. He subjected himself to cross-examination by the new chief prosecutor; he endured questions about his conduct with former employees who were sitting in the courtroom and remain on the Hamdan case; and he opened himself to public scrutiny and the judgment of the court.

Col. Davis did this because he believes the military commission system will never achieve just results. He delivered a scathing two-pronged attack: He criticized the government’s apparent willingness to rely on tortured evidence, and he stated that the system is being run by politically-motivated administration appointees who have repeatedly attempted to interfere with the professional judgment of the chief prosecutor and the members of his staff. The MCA prohibits any “person” from attempting to coerce or influence the prosecution or defense.

Col. Davis provided multiple examples of potentially unlawful interference, not all of which I will repeat here. According to Col. Davis, the pressure to charge “sexy” cases and win trials against defendants “with blood on their hands” began the day he interviewed for the job of chief prosecutor in August 2005. During the interview, Col. Davis says he told then-Department of Defense General Counsel William Haynes that the military commission trials “are historic. These trials will be the Nuremburg of our time. If there are some acquittals that would perhaps not be a bad thing.” Col. Davis says Mr. Haynes became visibly agitated at the mention of acquittals and stated: “We can’t have acquittals. We’ve been holding these guys for years. We can’t have acquittals. We’ve got to have convictions.”

Not only were administration officials concerned about winning convictions, but according to Col. Davis, various officials also saw political value in filing charges before the mid-term and presidential elections. At a meeting in September 2006, Col. Davis says Deputy Secretary of Defense Gordon England told him that “there could be some really strong political value in charging some of the high value detainees before the election.” The following summer, in July 2007, Col. Davis says legal advisor Brig. Gen. Thomas Hartmann told him to “get the train rolling” before the presidential election and stated: “If you get the 9/11 guys charged , it would be hard for the next president to stop the process.”

Col. Davis painted an ugly picture of legal advisor Hartmann, describing him as someone who “took micromanagement to the nano-management level” and expressed strong disagreement with Hartmann’s direction to offer tortured statements into evidence and to leave decisions regarding admissibility up to the judge.

Col. Davis eventually became so exasperated that he filed a formal complaint alleging undue influence on the office of the chief prosecutor by legal advisor Hartmann. The complaint led to an investigation, now known as the “Tate Investigation,” which ended in a report clearing Hartmann of misconduct, but advising officials to set forth a chain of command for the office of the chief prosecutor. Col. Davis resigned the day after learning he would be reporting to DOD general counsel William Haynes.

Col. Davis is not the only military commission prosecutor to have resigned. In fact, four others preceded him—Major Robert Preston, Captain John Carr, Captain Carrie Wolf, and Colonel Stuart Couch—making the same allegations of political interference and pressure to rely on coerced evidence.

***

Mr. Hamdan’s lawyers are planning to argue six additional legal motions on April 29, after which Mr. Hamdan’s trial is officially scheduled to begin on May 28, 2008. But listening to Mr. Hamdan and Col. Davis today, I could not help but question whether there will ever be any trials here, or whether the military commission system will eventually collapse under its own weight.

Today I attended hearings in the case of United States v. Salim Ahmed Hamdan. But the real defendant was the military commission system itself. In the case of Salim Ahmed Hamdan and Col. Morris Davis v. Military Commissions, the military commission system was convicted beyond a reasonable doubt.

“If there are any policies dealing with how we are to treat and handle minors who are captured, I don’t care what you think—that’s discoverable.”

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 11, 2008: Today’s defendant, Mr. Omar Khadr, a 21 year old Canadian citizen, was 15 years old when he was wounded and captured in Afghanistan. He has been imprisoned at Guantánamo since he was 16 years old. Mr. Khadr’s case has gained a good deal of notoriety; it is the subject of at least one book and has been covered on 60 Minutes and elsewhere. The government has charged him with murdering an American soldier by throwing a grenade in the course of a firefight that occurred in Afghanistan on June 27, 2002. He is also charged with attempted murder, conspiracy, providing material support for terrorism, and spying. The United States is seeking life in prison for Mr. Khadr. There is great international concern over the issue of Mr. Khadr’s age at the time of his alleged offenses and the appropriateness of bringing charges against him. The American government asserts that Mr. Khadr can be tried and punished as an adult, and the Canadian government has not intervened. Prosecuting someone for alleged war crimes committed as a juvenile is virtually without precedent, particularly by western nations in modern times.

Mr. Khadr’s Case

Mr. Khadr’s charge sheet alleges that he received training from al Qaeda members in June and July 2002. He is said to have scouted American positions (apparently the basis of the spying charge), and to have engaged in planting improvised explosive devices after the training. It is also alleged that, on July 27, 2002, Mr. Khadr and other al Qaeda members engaged American and Afghan forces in a firefight at a compound occupied by al Qaeda members or affiliates. Mr. Khadr is accused of throwing a grenade at American troops during the firefight, resulting in the death of an American sergeant. At some point, Mr. Khadr was shot twice in the back. Ultimately, he was taken prisoner.

The initial public accounts of the incident implied that Mr. Khadr had been lying in wait for American troops to enter the compound after the fight occurred and that he surprised them by throwing a grenade as they entered. Subsequent accounts have called into question the accuracy of this version. Today defense counsel raised the possibility that based on eyewitness reports, the sergeant may have been killed by other fighters or even by friendly fire. Defense counsel also reports having received more than one version of the initial incident report, prepared immediately after the firefight, and asserts that the government may have altered the report to strengthen the case against Mr. Khadr. The possibility that Mr. Khadr’s case is being brought as a result of political interference was also raised.

Today’s Proceedings: Ability to Mount an Effective Defense and “Equality of Arms”

The hearing today addressed the status of numerous discovery motions filed by the defense and some other procedural issues. Mr. Khadr was present but did not speak. The defense has filed more than 50 discovery motions, requesting the disclosure of documents, witness names, and physical evidence. (Motions filed prior to about two weeks ago are available at the military commission site at http://www.defenselink.mil/news/commissionsKhadr.html.) The military commission rules require that the government provide the defense with relevant and material information, particularly anything that tends to prove Mr. Khadr’s innocence or provides mitigating and extenuating factors for sentencing. Government prosecutors say they are doing everything they can to respond to the defense requests, but at the same time, they have actively objected to many of those requests. This is not unusual trial practice, but it does highlight the difficulties of mounting an effective defense and the inherent lack of “equality of arms” built into the military commission rules. Today the prosecutor repeatedly asserted that defense counsel had not explained the materiality of the requested information.

There is an inherent imbalance in this and all military commission cases. The government controls almost all of the information, in particular the classified information. This is despite the fact that defense attorneys have appropriate security clearances. Mr. Khadr’s defense counsel, for example, is a Navy Lt. Cmdr. with a top secret clearance. In one instance today, the prosecutor argued that, in his view, the defense did not have “the need to know,” a standard military term of art generally applied to classified information. The prosecutor also asserted a “heightened standard” with regard to classified information that, in his view, the defense had not met. It was quite clear from this exchange that the government has power to deny or delay the exposure of information to the defense. On one occasion, the trial judge noted that the prosecutor had referred to a defense discovery motion as “voyeuristic.”

The prosecutor repeatedly asked the military judge, Col. Peter Brownback, to explain the basis upon which he would rule on discovery issues. The stated purpose of this request was to give the prosecutor a basis for appealing the judge’s decision to the Court of Military Commissions Review (CMCR). The CMCR is a new and unique military court set up under the MCA as the first level of review from a military commission prior to review by a federal court. Under the MCA, the prosecutor has the right to file interlocutory appeals of adverse discovery rulings regarding classified information. The defense can appeal adverse rulings on access to classified information only after a verdict is reached, and when reversal is less likely.

There were several instances discussed today in which information had been slowly extracted from the government or where the government had not been forthcoming. A video from the firefight in Afghanistan was only recently found in storage at Guantánamo. Multiple reports written by the commander of the unit that provided significantly different accounts of the battle and of Mr. Khadr’s individual role were only recently located. The prosecutor cited the late emergence of these items as proof that the government is searching diligently for information, but the opposite interpretation is just as plausible.

In response to some of the requests, the prosecution has been very forthcoming with documents, which highlights another imbalance between the prosecution and defense. One member of the defense team informed me that the defense has received approximately 20,000 pages of documents to review. The prosecutor has a team of six attorneys and has been preparing its case for years. The detailed defense team has two attorneys and has had much less time to prepare.

I want to end this part of today’s discussion with a quote from a passionate argument the prosecutor made to the military judge: “We take our discovery obligations seriously, and have gone well and beyond what the drafters of the Military Commissions Act expected at a military commission…We have volumes of discovery requests that do not spell out any explanation as to why they would need the material.” I have to infer from this that the prosecution believes that the drafters of the MCA did not expect a serious discovery process, but something more abbreviated than that conducted in other more established criminal systems.

Prosecution Theories of Culpability

Because the MCA creates a new body of criminal law, it is unclear how the offenses included in the MCA will be defined in practice. Today the prosecution provided some insight into how broadly it construes the war crimes enumerated in the MCA. For example, the prosecutor articulated a theory of conspiracy that is exceptionally broad. Essentially the government asserted that anyone who joins or cooperates with al Qaeda in any way is a co-conspirator in any crime that al Qaeda intends to commit or commits. The logic articulated by the prosecutor was that, if someone joins or supports al Qaeda, knowing the organization’s history of terrorist activity, the mere act of joining the organization makes one guilty of conspiracy. Conspiring to commit a specific act of terrorism is not required. This could make designation as an unlawful enemy combatant synonymous with having committed a war crime, although the standard of proof is higher before a military commission.

Finally the prosecution seems to be endorsing a felony murder theory. In most criminal jurisdictions, a person who commits a felony during the course of which someone is killed may be tried for murder, even if the person had nothing to do with the actual killing and even if the death was an indirect result of the crime. There is no provision under the MCA, however, for this theory of culpability. The MCA defines murder as “intentional kill[ing of] one or more persons, including lawful combatants, in violation of the law of war.” During today’s press conference, the chief prosecutor Col. Morris suggested that Mr. Khadr could still be convicted of murder, even if the sergeant was killed by friendly fire, because Mr. Khadr participated in the firefight during which the sergeant was killed. This may significantly extend the scope of the MCA as it is written.

Final Observations

Although Judge Brownback made few rulings today, he forcefully asserted himself during at least one point. He made the following statement regarding the discovery of mitigation evidence: “If there are any policies dealing with how we are to treat and handle minors who are captured, I don’t care what you think – that’s discoverable.” The fact that Mr. Khadr was 15 when he was arrested is not going to change. However, the rules related to juvenile prosecutions—like almost everything else associated with the conduct of the military commissions—are going to be made up along the way.

“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.

“They clearly never met any military attorneys”

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 9, 2008: The quote above is from Ahmed al Darbi’s defense counsel, Lieutenant Colonel Bryan Broyles. He was referring to the people who established the military commissions and who, in his view, expected military lawyers to fall in line, mount a token defense, and allow their clients to be convicted. Lt. Col. Broyles’ comment was the high point of an otherwise disconcerting day.

Today was my second day at Guantánamo and my first military commission hearing. (For some information on my background, please see my blog posting from April 8, 2008). I really did not know what to expect, and the experience has given me a lot to think and write about. Let me start with a little background on Mr. al Darbi and his case.

Mr. al Darbi

Ahmed al Darbi is a Saudi citizen now aged 32. He has been in United States custody for six years, since he was 26. He is not charged with any offenses associated with the September 11 attacks, and there is nothing in the record to suggest that he knew of or participated in the planning or execution of those attacks, or for that matter any attack.

The Charges

The government has charged Mr. al Darbi with conspiracy and providing material support to terrorism. While conspiracy and material support are recognized crimes under federal law and can be tried in a normal criminal court, they have never been crimes under the law of war and have never been subject to trial by military tribunals before being named war crimes under the Military Commissions Act of 2006 (MCA). The government alleges that Mr. al Darbi went to Afghanistan in 1996 or 1997 at the age of about 22 and met with Osama bin Laden. He is alleged to have received training from al Qaeda and to have become a weapons instructor and worker at a training camp. He is supposed to have traveled to Pakistan in preparation for an unspecified terrorist operation. From late 2000 or early 2001 until late 2001, al Darbi is alleged to have been involved in several trips to the Middle East to find and buy a boat to be used in a terrorist attack in the Straits of Hormuz. He is alleged to have purchased the boat in late 2001. In the spring of 2002, he is said to have acquired visas for a Yemeni crew and to have purchased a smaller boat to train the Yemenis. He is also alleged to have obtained and used al Qaeda funds for his expenses and to have participated in telephone conversations with other persons, presumably al Qaeda members. There is no allegation that Mr. al Darbi every planned or attempted to carry out a specific attack.

Legal Developments

This morning Mr. al Darbi refused to accept appointed counsel, name an alternative counsel, represent himself, or be present during the proceedings. He also denounced the proceedings as illegitimate and a sham. After assuring himself that Mr. al Darbi understood the consequences of his decisions, the trial judge had Mr. al Darbi escorted from the courtroom and continued the hearing without him present.

After Mr. al Darbi was removed, and in a very short period of time, the judge dealt with a number of pre-trial issues. He asked the government-appointed defense attorney if he had any challenges to the voir dire responses of the judge (responses to written questions designed to determine if the judge has a conflict of interest or could be challenged on other grounds), and was told that there were no challenges. The judge then provided guidance on discovery indicating that the prosecutor should err on the side of providing requested material to the defense if there was any doubt as to relevance or materiality. Finally the judge set a discovery hearing date and directed the defense attorney to inform Mr. al Darbi that he had the right to be present at all future hearings. The judge said that he will ask defense counsel before every subsequent hearing if Mr. al Darbi has been informed of his options and of his decision. With that, the hearing was adjourned.

The Issues of Legitimacy and Adequate Representation

While the paragraphs above convey the essence of events, they fall short of fully capturing what happened or the issues that were raised. Most of the morning was dedicated to the issue of Mr. al Darbi’s representation. Although there were a number of problems with the sound system and with inadequate translation, the judge eventually asked Mr. al Darbi a series of scripted questions intended to establish his decision with regard to representation. Ultimately, Mr. al Darbi declined representation and declined to be present, but he had a few points to make along the way. He was calm and responsive, but it was clear from his tone, even in Arabic, that his remarks were delivered with emotion. I will quote from some of Mr. al Darbi’s translated responses as accurately as possible based on my notes.

“I protest the legitimacy of this court. There is no international court
or court in the U.S. that treats prisoners or accused people like I have been
treated. I have been isolated from the world for six years.”

“I don’t believe there is any attorney who would risk the honor of the profession to come into this court.”

“I want a legal advisor from my own country. Is this part of my rights or not?” (Under the commission rules, he does not have this right).

When asked if he could name an attorney he would accept, he stated: “I have been here for six years. Thank God, I can even still remember the names of my own family.”

When asked if he understood that Lt. Col. Broyles, his appointed military attorney, would represent him even if he refused representation, he responded: “I believe that you can do whatever you want to do.”

When asked if he understood that the trial would proceed without him present, he said: “This doesn’t concern me in any way. This is a theatrical piece. It isn’t true. Like everything that happens in Cuba against the unlawful combatants.”

“I understand that this is a play, the same play that has been played against all the unlawful combatants, claiming that they are a threat to United States national security.”

“History will record these trials as a scandal against you. I advise all here not to continue this play, this sham.”

“I was tortured and forced to say many things. I have committed no crime,
and I demand to be able to prove it.”

One thing I am trying to do in Guantánamo is put myself mentally in the positions of the other people here: guards, prosecutors, defense attorneys, judges, and even detainees in order to try to see the world as they might. In Mr. al Darbi’s case, it is particularly difficult to accomplish this task, but let us try to consider the following: He is not charged with any act of violence, let alone the September 11 attacks. He has already been in prison for six years. He is being tried in a military court for “crimes” that were not recognized as war crimes triable by military commission at the time of his alleged offenses. His attorney, who he is supposed to trust, is appointed by the military of the country that has detained and charged him. His only other option is to retain a civilian attorney from the United States that he is expected to name. How could anyone in this position expect a fair trial or view the court as legitimate?

The Press Conference

Shortly after the hearing, there was an informal press conference. Lt. Col. Broyles chose to speak to the press. The prosecutor did not. Human rights observers were allowed to attend but not to ask questions. I’ll summarize some of Lt. Col. Broyles’ comments.

“Mr. al Darbi’s decision and position is reasonable and conforms to that of
international observers. He reached his position of his own accord, but it
is consistent with what he has seen happen here so far.”

“As a defense attorney, I have an ethical requirement to abide by my client’s
wishes. He doesn’t want my representation. At the same time, I’m
being ordered to provide him with representation by my military superiors.
I’m going to consult my state bar, the ABA, and others for advice on this
ethical issue. I may well have to sit at the trial like a potted plant as
a compromise between my military and professional obligations.” (This will
do wonders for the perceived and real legitimacy of the court).

When asked if the commission might appoint another attorney with a different
perspective, he said yes. (This would also do wonders for the perceived
and real legitimacy of the proceedings).

“It is impossible to do criminal representation effectively without the trust of
the client. There is no way a defendant can ever trust his attorney in the
circumstances we have here.”

When asked if he had discussed with Mr. al Darbi the pros and cons of accepting
his representation, Lt. Col. Broyles answered that he had, but then came the
kicker: “There is a fundamental problem here. This just isn’t a
regularly constituted court. It is a new court that was set up after the
fact with rules built around admitting the evidence that was already available
to convict people for acts that weren’t crimes when they were committed.
How could anyone argue that this is a regularly constituted court?”

How indeed?

Lt. Col. Broyles went on to note that the military commission system was created by the Office of Legal Counsel in Department of Justice (DOJ) rather than the military. He noted that DOJ was becoming increasingly involved in individual prosecutions. In fact, there was a DOJ representative at the prosecutor’s table today.

Broyles speculated that, when DOJ set up military commissions, it did not expect the military lawyers to mount serious defenses. In his words, “they just thought we’d roll over and play by their rules. They clearly never met any military attorneys.”

Today’s Closing Observation

The United States has created a horrible mess here. Instead of relying on the civilian courts, which have already successfully prosecuted a number of terrorist suspects, or even on military courts martial, which also have well-established and fair procedures, the government has attempted to create a whole new legal mechanism, with its own unique rules and procedures. It is certainly possible that a recognizably fair system could be created this way, but to date this experiment has not succeeded.

Guantánamo: It All Seems So Normal

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 8, 2008: My name is Frank Kendall, and I am an uncompensated consultant to Human Rights First. I have been working with HRF either as a volunteer or consultant on detainee treatment issues for about four years now. When HRF asked me if I could go to Guantánamo as an observer, I jumped at the chance. Since my eyes, thoughts, and feelings will be the lens through which you will read about events of the next few days, a little information about my background may be in order.

I am a late (very late) 50’s age West Point graduate, former Army officer, Office of the Secretary of Defense executive, corporate officer for a major defense company, and national security consultant. I have served on several government advisory boards over the years, including one associated with military intelligence. I attended law school starting in the fall of 2000 with the idea that I would use my law degree to work on international human rights. It seemed to me that, with the end of the cold war, there was a real chance to extend the rule of law, especially human rights law, to the rest of the planet. That seemed like a worthwhile effort to be part of. Then came 9/11 and, much to my own surprise, I have been spending a lot of my time on human rights violations committed by the United States in the “war on terror.” This was not something I anticipated, and I cannot say that I am very happy about it. The fact is that in the international arena U.S. human rights advocates have a little problem with credibility right now.

The upshot of my background is that I have biases in two directions. I was a career Army officer (10 years active and 15 years reserve), and I have great respect and admiration for those who serve. My son is in Iraq with the VA National Guard and will be returning home about a week after I come back from Guantánamo. Accordingly, I tend to expect that the military people I observe will be carrying out their duties as ordered and in a reasonably professional way (particularly now, after so much attention has been focused on Guantánamo and with press and human rights observers present). I also, however, feel very strongly that the policies implemented by the U.S. government, and now being carried out by that same military I admire so much, are illegal, immoral and un-American. Some would disagree with that characterization, but the basic facts are not disputed. We have detained people for several years without trial or charge; subjected them to “harsh” interrogation; and are now trying a handful of those people under a set of rules, the Military Commissions Act (MCA) and implementing rules, that do not meet nationally and internationally recognized standards for fair trials.

Most readers of these postings will be familiar with the deficiencies in the MCA and rules, but some may not be. There are many deficiencies, but for me four stand out.

First, the right to a speedy trial was violated long ago for the people confined at Guantánamo. They have almost all been in custody for several years without charges or trial. One of them, now 21, has been here since he was 16.

Second, evidence obtained by coercion, and therefore inherently unreliable, may be admitted at the discretion of the judge. The degree of coercion detainees have been subjected to may be disputed, but the fact of coercion - even extreme coercion - is undeniable. The government likes to take credit for its “program” of “enhanced” interrogation. Much of the evidence against the detainees is believed to originate with other detainees who provided the information under interrogation at Guantánamo and elsewhere. It is hard to see how this “evidence” could be considered reliable.

Third, classified information will not be made available to defendants or, in many cases, even to their attorneys (including appointed military attorneys), contradicting the right to confront evidence and prepare a defense. The alternatives of redacted evidence, summaries, or stipulated facts based on classified information will be compiled largely by military commission prosecutors. I spoke yesterday with one of the military defense attorneys, a Navy Lt. Cmdr. He has a top secret clearance, but he is not allowed full discovery of classified information that could be relevant to his client’s defense.

Finally, there is the likelihood of bias or command influence on the military judges and the officers who will be members of the commissions. (There is also the policy problem of the perception of command influence in a military commission setting, but my intent here is to address legal rather than policy issues). The MCA and implementing rules provide that no participant’s efficiency report or promotion is to be influenced by a participant’s conduct in a military commission. But it is hard to imagine members being free of any concern that an acquittal would be looked upon unfavorably by the chain of command. Command influence does not have to be overt to be real.

There are many other problems. They include the broad admissibility of hearsay evidence, lack of access by defense lawyers to clients for adequate preparation, limited discovery, and charges for acts that were not crimes when they were committed, but the four cited more than suffice.

So here I am. While we were waiting for our flight at Andrews Air Force Base on Monday morning, I asked the defense attorney I spoke with a question: Do you think you are legitimizing an illegitimate process by participating in that process? His answer was the same one I had heard before from some of his colleagues. He worried about that prospect, but felt that the process would continue anyway and that his client would be better off with an able defense attorney than without one. Fair enough, but now I have to ask myself the same question: Is my being here with other human rights observers and the press helping to legitimize what is going on? Are we being used? The answer to some degree has to be yes. But I believe it is better to witness as much as possible and to raise the issues we need to raise based on our own observations—and perhaps even to influence events in a positive way—than it is to criticize from a distance. I may have more to say about this in a few days.

I have been asked by several people how I felt about going to Guantánamo to observe the commissions. I do have an expectation, and we will see if it is borne out. So far today it has been. My expectation is that events at Guantánamo will offer the illusion of some kind of “normal” that I will find to be almost surreal. As expected, the appearance of Guantánamo is largely that of any tropical American military base. There is a sailing club and a scuba club. The only difference is the addition of facilities for trials. The prison itself is concealed behind a ridge line. People are cordial for the most part and simply doing their jobs or socializing without any particular indication that something extraordinary is going on. But something extra-ordinary will be going on. By conducting the military commissions under the rules that have been established, America will be betraying her values. Under the guise of perfectly normal and acceptable behavior, guards, judges, and lawyers will go about their business in a very civilized and professional way as if it were the most normal thing in the world. I think I may find that troubling.