The Relevance of Discovery in Trial

Sahr MuhammedAlly – 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, May 8, 2008: Today’s military commission hearing in the case of 21-year-old Omar Khadr was all about discovery—what documents the government will turn over so that Khadr can effectively mount a defense. One thing was clear: the government is in possession of documents it does not want to disclose to the defense.

In the third discovery session since Khadr was arraigned in November 2007, Judge Col. Peter Brownback went through a list of outstanding discovery requests. Some of the requests include: an al Qaeda membership list from 1989 onwards; documents pertaining to the Libyan Islamic Fighting Group (LIFG) and contacts between al Qaeda and LIFG; copies of the DIMS (Detainee Information Management System) records relating to Khadr while in Guantánamo; documents relating to the men with Khadr during the firefight on July 27, 2002; policy on SERE (Survival, Evasion, Resistance, Escape) Interrogation Techniques; documents regarding the recruitment and use of children by al Qaeda, the Taliban or associated forces; and investigator notes of witness interviews.

The Charges

Toronto-born Khadr is accused of throwing a hand grenade in a July 2002 firefight between U.S. forces and al Qaeda suspects in Afghanistan. The grenade allegedly hit Special Forces medic Sgt. 1st Class Christopher Speer, who died of his wounds. Khadr was 15 years old at the time. Khadr has also been charged with attempted conspiracy with Osama bin Laden and associates of al Qaeda and with providing material support for terrorism. He is accused of providing himself to al Qaeda, which engaged in hostilities against the United States, including attacks in Kenya and Tanzania in 1989, the attack against the USS Cole in 2000, and the September 11, 2001 attacks.

Discovery Related to Issues of Ill-Treatment

The defense has claimed that Khadr was coerced into making statements as a result of harsh interrogations. In a redacted affidavit written in 2008, Khadr says that during his three-month imprisonment at Bagram, he was interrogated approximately 42 times. He also says that he was interrogated over 30 times in Guantánamo. He alleges that while in Bagram, he was hooded, sexually humiliated, threatened with attack dogs, and made to stand with his arms tied above him after suffering bullet and shrapnel wounds. At Guantánamo, Khadr says, “I was not provided with any educational opportunities, no psychological or psychiatric attention, and was routinely interrogated.” He also alleges that he was subjected to prolonged periods of isolation, sensory deprivation, stress positions, temperature exposure, and humiliation. Khadr claims that he was frightened into telling interrogators what they wanted to hear.

The defense has requested production of DIMS (Detainee Information Management System) records, which document Khadr’s day-to-day treatment in Guantánamo, to show that Khadr was punished for his failure to cooperate with interrogators. Judge Brownback ordered the government to produce the records by May 22 and said that, although he understand concerns about protecting prison officials’ identification, two members of the defense team, including lead counsel Navy Lt. Cmdr. William Kuebler, have the appropriate security clearances and are under a protective order. In the alternative, the judge ordered that the information be provided with the names of personnel redacted. Brownback warned that failure to produce the documents could result in an “abate[ment]” of the proceedings.

As part of the DIMS request, counsel referred to two government investigations: a 2005 Naval Criminal Investigation and a 2006 U.S. Army Criminal Investigation Division reportabout abuse in Bagram. The Army CID investigation was terminated because it involved “Sgt. C,” who had interrogated Khadr and was being court-martialed for his involvement in the death of a Bagram detainee. That investigation did, however, corroborate that Khadr was made to stand for hours with his hands chained above him. (Sergeant Joshua Claus was one of 15 US military personnel charged in connection with the murder of two men at Bagram five months after Khadr’s arrival. Claus was court-martialed for assault and “maltreatment of a detainee.” He pled guilty and was sentenced to five months in jail).

Counsel also made a motion to seek production of the December 2002 SERE Standard Operating Procedure (SOP), which apparently lists a set of abusive interrogation methods employed at Guantánamo. The SERE program was designed to help U.S. troops resist breaking under abusive interrogations if captured by enemy forces. As part of the SERE program, trainees are subjected to abuse, including sleep deprivation, sexual and cultural humiliation, and, in some instances, waterboarding. Prosecutor Marine Major Jeffrey D. Groharing admitted that the government has the SERE SOP, but said that it was not official policy at Guantánamo and therefore not relevant for discovery purposes. Notably, a March 2005 sworn statement by the former chief of the Interrogation Control Element at Guantánamo, however, said that SERE instructors taught their methods to Guantánamo interrogators. (The ACLU also made public a redacted document, obtained through Freedom of Information Act litigation, which referred to the December 2002 document).

Defense counsel has also sought the production of a February 2003 videotape of Khadr’s interview with Canadian officials to show that Khadr’s mental state is that of someone who has suffered abuse. Counsel also informed the court that a request has been made to the Convening Authority to allow Khadr to be evaluated by a psychiatrist and to show the expert the 2003 videotape. The government has agreed to produce the video but will alter the images of government officials.

Discovery Needed to Refute Charges

Defense counsel argued that because the government has charged Khadr with being associated with al Qaeda, it needs the membership list of al Qaeda, information about LIFG, an organization associated with al Qaeda, and names of known co-conspirators. Prosecutor Groharing objected, stating that the documents are not relevant and that Khadr had confessed to being a member of al Qaeda. Defense counsel replied: “a coerced statement by a 15-year-old is not proof.” He elaborated that “this is a case about a firefight, but the government has made it about Khadr’s alleged involvement with al Qaeda activities in 1998, the USS Cole, and 9/11—things that Omar has nothing to do with. This has consequences. . . .The nature of charges leads to scope of discovery.”

Judge Brownback asked the prosecution whether they knew the names of Khadr’s co-conspirators. The government stated that Khadr conspired with Abu Laith al-Libbi, former head of LIFG who was killed by U.S. forces in 2008, and other unknown individuals shown with Khadr in a bomb-making video.

No Discovery, No Trial Date

Judge Brownback asked the prosecution several times whether it had the documents requested, and the government’s answer was affirmative. Yet the government has not provided those documents to the defense. A frustrated judge at one point said: “I have been badgered by the prosecution to set a trial date. . . but one need’s discovery. . . This is incumbent on all to comply. If you [referring to the prosecutor] want to try the case discovery is needed. Get on with it.”

Maj. Groharing repeated the government’s request for a trial date because victims are “waiting for justice.” He then said that Lt. Cmdr. Kuebler spends more time “writing op-eds” and trying to put political pressure on Canada to release Khadr instead of preparing for trial. Judge Brownback replied that, according to the commission, “how opposing counsel best allocates time is not relevant to setting a trial date. Trial schedule is based on whether we are ready for trial.”

Complex Questions Continue to Hinder Military Commission Progress

Sahr MuhammedAlly – 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, May 7, 2008: Today’s hearings were in stark contrast to each other—one involved Ali Hamza Ahmed Sulayman al Bahlul, who rejected the military commission system and renewed his support for Osama bin Laden, and the other involved Mohammed Jawad, a distraught 23-year-old defendant who has agreed to participate in the proceedings for now, but who has mentally suffered from years of isolation in Guantánamo. Both proceedings had one thing in common, which has been the case for nearly every military commission hearing: how to deal with issues not addressed in the Military Commissions Act of 2006 (MCA) or the military commission rules. Today the questions were about how to share evidence, including classified evidence, with a defendant who has chosen to represent himself; whether a judge has the authority to rule on allegations of mistreatment; and whether a judge can order a change in conditions of confinement.

Rejection of the Military Commission Proceedings

Ali Hamza Ahmed Sulayman al Bahlul, Osama bin Laden’s alleged media director, has been charged with conspiracy and solicitation to commit murder of protected persons; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; terrorism; and providing material support for terrorism.

At his arraignment today, a defiant al Bahlul walked into the courtroom wearing a greenish-tan uniform. He sat alone at the defense table. His appointed military counsel, Air Force Major David Frakt, a paralegal, and an interpreter sat at the table behind al Bahlul. For the observers, this appeared to be a sign that al Bahlul did not want counsel to represent him.

Judge Col. Peter Brownback began the proceedings, but al Bahlul motioned with his hands that he would not answer. When Major Frakt stood up to announce his credentials to the court, al Bahlul motioned to Major Frakt to sit down. Al Bahlul requested paper and a pen and wrote something in Arabic. Al Bahlul’s writings were marked as a defense exhibit. He asked the translator to read his writings to the court. After a short recess so that the translator had time to go over the writings, the judge instructed that al Bahlul’s writings be read into the record. The papers had the following inscriptions:

* Declaration of rejection of the court

* Declaration of continued allegiance to Osama bin Laden

* Declaration of boycott

Judge Brownback described for the record al Bahlul’s previous appearances before the military commissions. In 2004 and 2006, al Bahlul requested that he be allowed to represent himself. At a hearing in January 2006, al Bahlul wrote on a piece of paper the word “muqataa” in Arabic and then in English “boycott, boycott, boycott.”

Judge Brownback said that the MCA and the military commission rules permit a defendant to represent himself provided that his behavior comports with the decorum of the military commissions and that he follows the commission rules.

Judge Brownback asked al Bahlul if he wanted Major Frakt to represent him. Al Bahlul sat quietly and refused to answer Judge Brownback’s questions. Major Frakt told the courtroom that al Bahlul has refused to meet with him and that al Bahlul wishes to represent himself.

Al Bahlul then requested to speak to the court and spoke for an hour. The human rights observers and members of the press, who were sitting in the viewing galley behind soundproof glass, were unable to hear the first ten minutes of al Bahlul’s statement due to audio technical problems. When the sound finally came on, we heard al Bahlul renouncing his Yemeni citizenship. He said that he “accepts the consequences of his actions,” denounces the regimes of Saudi Arabia, Jordan, Yemen, Kuwait, and that the war against the United States will continue.

Judge Brownback allowed al Bahlul to act as his own attorney for now, but kept Major Frakt as standby counsel. He also instructed the prosecution to brief the court on how evidence will be shared with the defendant and how issues of classified information will be handled. At a press conference after the hearing, Major Frakt said that al Bahlul’s self-representation raises a number of issues, such as whether al Bahlul can see classified evidence or how he can review case material, given the absence of computers or a law library in the prison. He also added that most of the evidence is not in Arabic.

Effects of Solitary Confinement

Mohammed Jawad, who rejected the proceedings at his March 12^th arraignment, agreed to participate today but authorized counsel to represent him only for the purposes of challenging the legitimacy of the military commission system.

Jawad was arrested by Afghan police in December 2002 before being transferred to U.S. custody in Bagram and then Guantánamo. He was sixteen years old on the date of his arrest. He is accused of throwing a grenade at a U.S. military vehicle in Kabul, Afghanistan on December 17, 2002, and injuring two American soldiers and their Afghan translator. He has been charged with attempted murder and causing bodily injury.

Air Force Major Reserve David Frakt, who was assigned to represent Jawad on April 28, told the court: “Mr. Jawad is an innocent man. He has been held for five years. He was a homeless boy wrongfully accused and beaten into confession by the Afghanistan police.” Frakt also told the court that Jawad was mistreated when he was forced to appear for his arraignment in March and was punished for his behavior afterwards. At the press conference, Major Frakt elaborated that certain comfort items, such as Jawad’s blanket, were taken away from him. Defense counsel asked the judge to rule on Jawad’s mistreatment. This appeared to be the first time that a military commission judge was asked to provide recourse for mistreatment.

Defense counsel also asserted that because Jawad is depressed, desperate, and angry he cannot properly assist in his defense. He added that the judge should order that Jawad “be moved to a restful place to rehabilitate” and that he be given a mental health evaluation. It remains to be seen whether the judge will be permitted to order any change in Jawad’s conditions of confinement.

A similar concern has been raised by Salim Hamdan, whose lawyers have argued that lengthy solitary confinement and detention in Camp 5 and 6 have affected Hamdan’s mental health and his ability to assist in his defense. To date, there has been no decision on the motion. Camp 5 and 6 are maximum security prisons where detainees are confined to a 8 x 10 foot cell for 23 hours a day. There is no natural air or sunlight and artificial light is on 24 hours a day.

During the proceeding, Jawad appeared agitated and told the court that he had “been punished a lot.” He talked about how he was woken up by guards in the middle of the night and interrogated for long hours. He also mentioned how he was moved from different camps or different cells and then said that he could not remember how long he was in a particular camp. He seemed to have lost track of time. He also said that he was promised books so he could study and told that he would be transferred to Camp 4, where he would be able to mingle with other detainees, but that these promises were not kept.

During the hearing, he appeared confused and held his hand to his head several times while stating that he could not remember. He asked why he was in Guantánamo and kept saying that he wants to go home. He told the court that he is “a human being” and asked the court whether this was “justice.”

The issues that arose in the al Bahlul and Jawad proceedings today - questions regarding classified evidence, self-representation, and a judge’s authority to rule on mistreatment and conditions of confinement - occur often in the ordinary criminal justice system, where judges make rulings based on statutes and case law. However, in the new military commission system, there is no precedent and Guantánamo judges are making up the rules as they go.