A Bad Week for the Government at GITMO

Sharon Kelly – Human Rights First’s Elect to End Torture '08 Campaign Manager – 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, November 3, 2008: You may have missed it in the frenzied press coverage of the final days of the presidential election, but last week the current administration’s military commission system at Guantánamo Bay continued its slide toward collapse.

On Tuesday, a judge at Guantánamo barred from court a confession given by Mohammed Jawad, who was arrested as a teenager by Afghan authorities who threatened his life and the lives of his family members -- threats amounting to torture, according to the judge’s ruling. A former prosecutor, Darrel Vandeveld, who recently resigned in protest over the government’s handling of Jawad’s case, said that the ruling means “it is now impossible to prosecute with any credibility." While the commissions’ head prosecutor, Col. Lawrence Morris, previously indicated that the government would rely on Mohammed Jawad’s post-capture confessions to make its case -- confessions which he claimed were made without duress -- he has yet to say whether Tuesday’s ruling will lead him to drop the charges.

On Wednesday, the military judge who heard the case of Salim Hamdan, Osama bin Laden’s driver, refused the government’s plea to “reconsider, reassemble, reinstruct and re-announce a sentence,” further cementing the jury’s sentence of Mr. Hamdan to serve an additional five months beyond the time he has already served. This light sentence was a slap in the face to the government, which has maintained that those detained at Guantánamo comprise the “worst of the worst”.

Finally, last week Ali Hamza al Bahlul, a man accused of acting as al Qaeda’s media secretary and propagandist, went on trial -- only the second trial to be conducted at Guantánamo. Even if al Bahlul is convicted and sentenced to serve a significant amount of time, his boycott of the proceedings means that we have yet to encounter an example of a robust use of the adversarial system leading to conviction and a stiff sentence – an end result greatly desired by the government to justify the existence of the commissions.

Here are some key details from the al Bahlul trial, which I spent the week observing:

• Three members of the “Lackawanna Six” -- remember them from the 2003 State of the Union address? -- testified that they had been shown al Bahlul’s video at an al Qaeda training camp in Afghanistan. The three said that the film’s call to take up arms against the United States made them realize that they were in over their heads at the camp and they subsequently returned home.

• Prosecution witnesses gave testimony about how pleasant the Camp X-Ray and Camp Delta facilities were. (Sure, in Camp X-Ray detainees were housed in cages, but it didn’t rain much and the weather was pretty much in the 80s . . .)

• The government showed two films to the jurors. First up was al Bahlul’s own film, The Destruction of the American Destroyer the U.S.S. Cole. To counter al Bahlul, the government reprised its budget film from the Hamdan case – The Al-Qaeda Plan – which, in its attempt to provide an overview of al Qaeda’s organization and aims, borrows liberally from al Bahlul’s film and features graphic images of the 9/11 attacks.

• The judge decided that the government must prove as an element of each underlying offense that al Bahlul was in fact an enemy combatant, significantly increasing the burden on the government.

In contrast to the ongoing Guantánamo debacle, this week in federal court Chuckie Taylor, who served as the head of his father’s security services during his bloody rule of Liberia, was convicted of torture under the anti-torture statute – a law the Justice Department under President Bush attempted to define out of existence with its misguided 2002 torture memo.

In short, it was a bad week for the Bush Administration and its dubious legal innovations. With the presidential election behind us next week, let’s hope we can begin to chart a way out of Guantánamo.

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.”

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.