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.