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.

The Hamdan War Crimes Trial: An Illusion of Justice

Published at The Huffington Post
August 6, 2008