The Detainee Dance at Gitmo

David Danzig – Deputy Program Director at Human Rights First – is in Cuba to monitor the proceedings and report back on events as they unfold.

Guantánamo Bay, July 16, 2009: At 1:40 PM the court room was prepared for motions to be heard against five men accused of plotting the 9/11 attacks, except that one of the detainees was talking with his attorney in such a loud tone that it was difficult for the proceedings to begin.

Mustafa al Hawsawi, one of the five so-called “9/11” defendants, claimed that he had been misled about his role in the day’s proceedings and said that he wished to leave before motions even began.

Al Hawsawi’s abrupt departure followed more than three hours of legal wrangling. At issue were questions regarding the detainees themselves. Did they have to attend their own hearings? If they refused, should the staff judge advocate use force to compel them to be in the court room?

Like so many things at Guantánamo related to military commissions, this was unchartered territory where the officials in charge seemed, at times, to be unsure of the rules.

There is no legal precedent to fall back on. This is the first time that the military commissions were dealing with these issues in a conspiracy case involving multiple defendants.

The morning was filled with motions as the defense and the prosecution jockeyed for advantage.

In the strange world of military commissions, where nothing is what an outside observer might expect it to be, the prosecution argued that the court should do what it could to bring all of the accused to the courtroom. Give them a chance to speak for five minutes each at some point during the proceedings, a lead prosecutor in the case pleaded with the court, but don’t allow them to participate in the court’s active business.

No, said David Nevin, a legal advisor to Khalid Sheikh Mohammed. Mohammed, the alleged “mastermind” of the 9/11 plot, is representing himself in these proceedings but chose not to attend the motions that were argued today.

It was Nevin’s view that Mohammed should be allowed to participate in the motions themselves since he was being tried for “conspiracy” and therefore the disposition of the other defendants in the case – were they competent to stand trial? – would have a direct bearing on his standing.

Meanwhile attorneys for al Hawsawi and Ramzi bin al Shibh argued that their clients should not be able to speak if they were to attend. Lawyers for these detainees are arguing that they may not be competent to stand trial, an argument that could be undercut if they began making statements in court.

Got it?

Well, unfortunately the prosecution did not.

When Robert Swann, a lead prosecutor, called the officers in charge of the detention facililty to relay the judge’s decision, he got it wrong. The judge was willing to provide the three detainees who are representing themselves five minutes to speak, but he ruled that the other two defendants would not be allowed to speak. The prosecutor said that all detainees who attended the proceedings would have a chance to speak.

To make matters worse, the officer who manages high value detainees then threatened the detainees that their “privileges” (regular meetings with attorneys and access to a laptop to prepare for their trials) “could be” revoked if they did not attend the day’s hearing. Neither the judge nor the prosecutor suggested in court that this could be the case.

After al Hawsawi left, Ali Abdul Aziz Ali told the court, through his attorney, that he had only come to the court to protect his privileges. He said that he felt like he had been “blackmailed.”

The whole incident took an additional 45 minutes to sort out.

Observers were left scratching their heads.

Why would a system be in place where the jailers and the prosecutor are so intimately linked? Why is it up to the prosecutor to communicate the judge’s orders to the detainees?

And, well, wouldn’t we be better off in federal court where these sorts of snafus were much less likely to dominate the court’s agenda?

At the end of the day, it was unlikely that the cases against the accused could move very far forward this week. Too much depends on changes the Obama administration is mulling to the structure of the commission process.

But what little did happen does not inspire confidence, since even the most basic issues like summoning detainees from their cells for a motion led to mistakes, confusion and frustration.

Throughout the day, the judge and many of the attorneys labored as best they could under a system that is constantly evolving. But at the end of the day many were left wondering if such a complex case might be better off in a more mature setting that is better equipped to handle these issues.

In the last 20 years, U.S. federal courts have handled more than 120 terrorism cases. Federal courts are equipped to try big time terrorism cases– now it is just up to the politicians to recognize that what is happening at Guantánamo is not the best option.

Quotes of the Day from Guantánamo Bay

David Danzig – Deputy Program Director at Human Rights First – is in Cuba to monitor the proceedings and report back on events as they unfold.

Guantánamo Bay, July 15, 2009: As the Obama administration and Congress mull reinventing for the third time a legal system to try terrorism suspects, three hearings were held today at Guantánamo Bay in the military commission cases of Omar Khadr, Mohammed Kamin, and Ibrahim al Qosi.

The good news is that changes the Obama administration has asked for may help improve a process that has never operated in a way that folks familiar with the American legal system would recognize as justice. The bad news is that the system is so flawed that these changes cannot salvage it. Meanwhile, our normal federal criminal courts competently go about the business of trying international terrorism cases, to the tune of over one hundred in the years shortly before and since 9/11. Go figure.

Most of the court time today was spent on motions that the government made seeking a 120-day delay in each of the cases. Doesn't it seem that something is fundamentally wrong with a system in which after six or seven years of holding a man in prison, the government has to ask for another four months to prepare?

Here are some tidbits from the proceedings I observed today.

* * * * * * * * *

“I will take a shower when you guys are ready to send me home,” said Mohammed Kamin, a detainee who was captured on May 14, 2003, and has been held at Guantánamo since at least 2004. Kamin declined to attend his hearing today, saying he had no interest in participating in the military commission process and declining an offer for a shower before the hearing. (Kamin’s remarks were reported to the court by a representative of the Staff Judge Advocate’s office who spoke to the detainee through his “bean hole” – a waist-high slot in his cell that is used to deliver food.)

“We do not speak on behalf of (Kamin). In fact, he has instructed us not to speak on his behalf,” said Navy Lt. Richard Federico, defense counsel for Mohammed Kamin. Lt. Federico has not met with his client for more than a year. He explained to the court that he has passed through the guards at the detention facility numerous notes to Mr. Kamin requesting a meeting. Federico even went so far as to visit Afghanistan and take pictures of himself with Mr. Kamin’s father and 6-year-old son, but even after seeing those pictures, Mr. Kamin has still refused to participate in the military commission process. As Federico said, after all that has happened, it seems he has no faith that anyone wearing a U.S. military uniform could have his best interests at heart.

“The changes (proposed by the Obama administration) to military commissions are not just slight. You are looking at a tectonic shift in the way these cases are handled,” said Lt. Federico. Standing in front of the judge, Air Force Col. W. Thomas Cumbie, Federico quoted Senate testimony from senior Obama administration officials that suggests the administration will no longer pursue “material support for terrorism” charges against detainees in military commission proceedings - the very charges that Kamin, like a number of other detainees, faces. Federico argued that the new administration’s position suggested that the government was “biding time” and that the case would soon “go away.” In light of these changes, he urged Judge Cumbie to dismiss the case against Kamin.

“It is not a done deal until it is a done deal,” responded Military Judge Cumbie, warning Lt. Federico that the Military Commissions Act had not yet been changed and that reports of legislation that might help Mr. Kamin may not, in the end, become law.

“Laws are updated all the time. Our role is not to criticize. Our job is to implement the law,” said Chief Military Prosecutor John Murphy, when asked after the proceedings about prosecutors’ ability to prepare their cases if they don’t even know what form military commission proceedings might take due to the administration’s review.

“It’s as clear as mud,” Judge Cumbie said, after ruling on issues relating to the uncertain future of the government’s case against Kamin. The judge was frustrated by continuing questions surrounding discovery and the “glacial” pace at which the prosecution was handing over basic documents such as the statements of the accused. Federico told the court that he had received “thousands of pages” of discovery just days before the hearing and that with Kamin having now spent so many years in prison, he was frustrated that it had taken the prosecution so long to hand over the documents necessary for a trial.

“The idea that the government should seek delay after delay while they literally invent a process to try Mr. Khadr is extraordinary,” said defense counsel Navy Lt. Cmdr. William Kuebler, arguing against a 120-day delay in the case against Omar Khadr, a Canadian citizen who was 15-years-old when he was taken to Guantánamo in October 2002.

“I have no trust [in the military lawyers],” said Omar Khadr, who attended his hearing today and told the court that he did not want to continue to have Lt. Cmdr. Kuebler, or any uniformed attorney, play a lead role in his defense. The judge agreed to remove Kuebler pending security clearance for a civilian attorney that Mr. Khadr approves.

One step forward, two steps back.

Military Prosecutor: 66 Ready to Be Tried At Gitmo

David Danzig – Deputy Program Director at Human Rights First – is in Cuba to monitor the proceedings and report back on events as they unfold.

Guantánamo Bay, July 14, 2009: Navy Captain John Murphy, the chief military prosecutor at Guantánamo Bay, announced today that military prosecutors were ready to proceed with cases against 66 of the more than 220 security detainees held at the naval facility in Guantánamo Bay.

Speaking to more than two dozen reporters at Guantánamo, Murphy said that he was “personally comfortable” that the government could mount a case that would not depend on evidence gathered through the use of coercion.

“We have 66 viable cases,” Captain Murphy said. He refrained from commenting on whether the government might seek to bring some of those cases to trial in federal civilian courts as it did in the case of Ahmed Ghailani, the alleged East Africa embassy bomber.

The chief military prosecutor went on to say that he “would not draw timelines” regarding what evidence would and would not be used. The Military Commissions Act of 2006 currently allows for evidence obtained by cruel, inhuman or degrading treatment to be admitted if it was obtained before December 30, 2005 and meets other criteria.

Independent observers said they were concerned that the prosecutor’s office would be making decisions about what evidence was appropriate and what evidence was not appropriate to use without any independent review, because the statute governing the commissions continues to permit coerced evidence under certain circumstances.

“They say repeatedly that they are not going to rely on evidence that was obtained using coercion,” said Vic Hansen, a former Army Judge Advocate General officer who is observing this week’s proceedings for the National Institute of Military Justice. “Well, it’s the prosecution who is making that call alone without any transparency.”

Captain Murphy said that the prosecution had developed “a standard” to ensure that no evidence obtained improperly would be used in the trials. But he declined to elaborate on that standard. In a Senate debate over proposed legislation to change the statute authorizing the military commissions, the Obama administration has suggested—among other changes—imposing a voluntariness standard that would presumably exclude coerced evidence. Absent such an amendment, existing law allows the military judge to admit evidence obtained by coercion.

“What it comes down to is more or less the government saying, ‘just trust us,’” said Hansen.