“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.

Khadr and al Darbi: Too Late for “Speedy” Trials

Kevin Lanigan - Director of the Law and Security Program at Human Rights First – 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, March 13, 2008: Two military commission hearings were held on Thursday, March 13: a hearing on defense motions for discovery in the case of Omar Khadr, and the initial appearance and arraignment of Ahmed Mohammed Ahmed Haza Al-Darbi.

Khadr, a Canadian citizen who was wounded and captured in a 2002 firefight with U.S. forces in Afghanistan when he was 15 years old, is charged with murder, attempted murder, providing material support for terrorism and spying. He is accused of throwing a grenade that killed a U.S. soldier during the firefight.

Al-Darbi, a Saudi citizen who was arrested by Azerbaijan authorities and transferred several months later to U.S. custody in Bagram, Afghanistan, is charged with conspiracy and providing material support for terrorism.

The big news from yesterday’s hearings came from the morning Khadr session. Navy Lieutenant Commander William Kuebler, Khadr’s detailed defense counsel, revealed that there are apparently two different battalion commander reports describing the 2002 firefight, both bearing the same date, but apparently produced a couple of months apart. The battalion commander’s initial report—written immediately following the engagement—is said to have revealed that the enemy fighter who actually killed the U.S. soldier Khadr is accused of killing was himself killed by U.S. forces during the firefight. The second version, apparently generated a couple of months later, but bearing the same date as the first, is said to contain a revised description of events, indicating that the enemy fighter was “engaged” rather than killed. Kuebler contends that this second report was “manufactured” by the government to buttress its case against Khadr, who by that time was being held in U.S. custody at Bagram and, according to Kuebler, had been accused by his interrogators of killing a U.S. soldier.

Yesterday, Kuebler requested the right to depose the Army lieutenant colonel who commanded the battalion involved in the 2002 firefight. Army Colonel Bruce Pagel, the deputy chief prosecutor, responded by denying that the government had manufactured evidence against Khadr.

What struck me about both hearings yesterday was not this particular controversy, but rather the extent to which the government attempted to handcuff the defense, notwithstanding the government’s stated desire to give these proceedings the appearance of fairness.

In 2006, the Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749, 548 U.S. ___ (2006), struck down the original military commissions system that had been established by order of President Bush, because it violated the Uniform Code of Military Justice (UCMJ) and had not been authorized by Congress. Subsequently, when the Bush administration went to Congress for a law to establish military commissions, senior Bush administration representatives expressly rejected taking an approach (favored by many in Congress and the then-serving judge advocates general of the military services) that would have used the UCMJ as the starting point for a military commission system, making any necessary adjustments to meet the true exigencies of terrorism cases.

Instead, the Bush administration made clear that its approach—which became the Military Commissions Act of 2006—rejected the UCMJ as the foundation for military commissions. Stephen Bradbury (who runs the Justice Department’s Office of Legal Counsel (OLC), but has not been confirmed by the Senate as Assistant Attorney General) was the Bush administration’s point-person with Congress on this issue in 2006. In July 2006, portraying UCMJ procedures as a benefit that should be bestowed only upon U.S. soldiers, Bradbury told the Senate Judiciary Committee:

In trying al Qaeda terrorists for their war crimes, we firmly believe that it is neither appropriate as a matter of national policy, practical as a matter of military reality, nor feasible in protecting sensitive intelligence sources and methods, to require that military commissions follow all of the procedures of a court-martial.

But the administration’s talking points have since changed. In a February 2008 press conference announcing the filing of charges against the first of the “high value” detainees, Air Force Brigadier General Thomas Hartmann, legal advisor to the military commissions’ “appointing authority,” sought to cloak the military commission system in the mantle of the UCMJ:

These processes that we have before the military commissions in many ways parallel the military justice system which, I think, is very well regarded by the defense community as giving tremendous rights to defense. In our case, we have to make some adjustments for national security, for pretrial rights, speedy trial and so forth, because of the nature of the global war on terror, which has extended for some time and is continuing.

Several incidents yesterday made clear that the true military commission system—at least as the government would choose to run it—is much closer to Bradbury’s distancing from the UCMJ than Hartmann’s embrace of it.

In the Khadr case, Kuebler presented numerous discovery motions seeking to compel the government’s production of various documents and other information, including the names of Khadr’s interrogators, communications between the Canadian and U.S. governments about Khadr, and records of investigations into prisoner abuse at Bagram when Khadr was held there. (Khadr alleges he was abused at Bagram by his interrogators and others, as reported in Human Rights First’s recent report, Tortured Justice.) In several instances, the lead prosecutor, Marine Major Jeff Groharing, made clear that the government had independently decided—without reviewing or even searching for the information sought—that the information would not be “helpful” to the defense, so there was no need to produce it. This position is based on a distorted interpretation of Rule 701 of the Rules for Military Commissions (which requires production of information that is “material to the preparation of the defense”) that contrasts sharply with the interpretation commonly given by military courts to an identical provision in the UCMJ. Army Colonel Peter Brownback, the military judge, strongly implied he intended to use the standard meaning of “materiality” in Khadr’s case.

Later, Groharing insisted that it could not possibly be “helpful” to the defense for Kuebler to travel to Afghanistan to collect evidence and interview potential witnesses, so there was no need to set a trial schedule that would allow Kuebler to do that. Whether or not it was the government’s intention, this line of argument suggested that the government believes it gets to design the defense case as well as its own. And all for the ostensible purpose of ensuring that Khadr gets a “speedy trial”—after having been imprisoned for years without having a trial or even being charged with a crime.

The hearing for Al-Darbi—who also alleges abuse by U.S. military personnel while he was held at Bagram—had its own variations on these themes. Al-Darbi’s detailed defense counsel, Army Lieutenant Colonel Brian Broyles, met with Al-Darbi for the first time earlier this week. Broyles actually traveled to Guantánamo to meet with Al-Darbi and his habeas counsel last month. Once Broyles and the habeas counsel arrived in Guantánamo, however, the staff judge advocate of the Joint Task Force that runs the detention operation ordered the lawyers not to have any contact with each other and barred their meeting with Al-Darbi. There is no known rule that mandates or even justifies these restrictions, and yesterday Army Colonel James Pohl, the military judge in the Al-Darbi case, made clear that the restrictions will not apply unless and until he is presented with an authoritative legal mandate requiring them.

Yesterday’s hearings actually ran fairly smoothly—certainly nothing like Tuesday’s hearing in the Jawad case. Nevertheless, they reinforced a number of recurring incongruities in the military commission proceedings:

• According to General Hartmann, the defense in military commission cases has the right to obtain evidence and to call witnesses, including expert witnesses. However, this right actually only includes a right to ask for evidence and witnesses, with the prosecution or the appointing authority deciding whether to accommodate the defense.
• Although military commission rules ostensibly exclude the admission of statements elicited by torture, the government has written and the prosecution seeks to apply the discovery rules so as to make it difficult, if not impossible, for the defense to prove torture.
• While the government has held some prisoners without trial for more than six years, and all of them for at least several years, once charges are issued, the prosecution nevertheless seeks to press the proceedings forward as quickly as possible in the name of the prisoners’ “speedy trial” rights, even at the expense of effective defense preparation.
• And while the government gives prisoners a right to counsel in military commission proceedings, it has erected and continues to devise substantial obstacles to the provision of effective assistance of counsel and to the formation of meaningful attorney-client relationships that are critical to mounting a real defense.

Notwithstanding the impediments to due process that are inherent in the design of the military commission system, in all three proceedings this week—Khadr and Al-Darbi yesterday, and Jawad on Tuesday—I witnessed military legal professionals trying to make the process more fair. Certainly the detailed military defense counsel, doing their best to effectively represent their clients, fit this description. But the military judges also revealed a willingness to rule against the government when necessary.

Nevertheless, this is not how or where these cases should be tried. They should be tried in regular civilian or military courts, applying standards and procedures that have stood the test of time, are broadly respected in the United States and throughout the world, and still provide the best prospect for bringing the perpetrators of 9/11 and other terrorist acts to justice.