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.

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.

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.

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.

Jawad Asks for Justice and Fairness; Says Military Commission Trials Are Illegal

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 12, 2008: Two weeks ago, Attorney General Michael Mukasey visited Guantánamo for about six hours. Among other things, he met with prosecution officials down here, but he did not see any proceedings because none were in session. He should have been here yesterday.

On Wednesday March 12, Mohammed Jawad, a young Afghan man, was arraigned on military commission charges enacted into law in 2006, accusing him of throwing a hand grenade into a vehicle carrying two U.S. Army non-commissioned officers and their Afghan interpreter, wounding all three of them. Jawad was 16 years old at the time of the alleged offense in December 2002. He has been in U.S. military custody ever since then—now for more than 5 years—first at the detention facility at Bagram Air Base in Afghanistan, and then at Guantánamo.

We had heard rumors since the night before that Jawad’s arraignment might not happen. Still, we were told Wednesday morning that the arraignment would begin at 1pm. After going through the external security checkpoints and being in place by the appointed hour, three more hours passed with nothing happening, as the media representatives and the NGO observers sat outside at picnic tables, sheltered from the sun by a tarp.

Finally, at nearly 4pm, we were ushered through the final security checkpoint and into the courtroom for an arraignment that should have taken fifteen minutes, but actually took two hours. By the time we were seated, Jawad was already in the courtroom, dressed in his orange prison jumpsuit with his feet in chains, alternately holding his head in his hands and lying his head on his crossed arms on the table.

Marine Colonel Ralph Kohlmann, the military judge in Jawad’s case, began the proceedings by announcing that he had two things to put on the record. First, Kohlmann reported that Jawad had refused to leave his cell yesterday morning to come to the arraignment, describing at length his analysis of the military commission rules and the various steps he and others took to get Jawad to the courtroom. (After the proceedings were over, Army Colonel J. Michael Sawyers, Jawad’s detailed military defense counsel, told us that Jawad had to be forcibly carried from his cell). And second, Col. Kohlmann chided defense counsel for failing to have Jawad dressed in civilian clothes for court, so that no negative inference could be drawn from his appearance in prison garb.

Then Col. Kohlmann asked Jawad whether he accepted Col. Sawyers as his defense counsel. (This inquiry was interrupted when Col. Kohlmann realized that Jawad’s headset—through which the proceedings were to be translated into Jawad’s native Pashto—was not working. After replacing the headset, the proceedings began again). Col. Kohlmann explained to Jawad his right to counsel in these proceedings, in language very similar to what any regular viewer of our police procedural television shows would easily recognize. But Jawad, raised in the mountains of Afghanistan and Pakistan, and with no more than an elementary-level religious education, has never seen those shows. Col. Kohlmann repeated his explanation of Jawad’s right to counsel, asking again and again if Jawad would accept Sawyers as his attorney, if he wanted another military counsel detailed, if he knew a civilian attorney he would prefer, or if he wanted to represent himself.

Through the court interpreter, Jawad said he did not understand what Col. Kohlmann was saying, that he wanted no counsel and no trial, and that he had things to say that he wanted Col. Kohlmann and the journalists to hear:

I’ve been treated unfairly since my arrest. I’m innocent. I’ve been tortured.
(See Human Rights First report entitled Tortured Justice, http://www.humanrightsfirst.info/pdf/08307-etn-tortured-justice-web.pdf).
I’m a human being. I’ve not infringed anyone’s rights. What is being done
to me is illegal. I was brought here illegally….When I was arrested I was only
16. I don’t know court. I don’t know a judge’s job….I’m very glad if these words
get out today. I’m glad there are journalists to hear me. Before if I said
anything it would not get outside my cell….Is it in the United States
Constitution to be treated this way? I want justice and fairness. That is all I
have to say.

Jawad said that, as a child, he read in books and newspapers of the American government’s criticism of Taliban cruelty in Afghanistan, and that the Taliban would kill and imprison people without trial and did not respect human rights. But Jawad also said that he was arrested by the Americans more than five years ago with no trial, and that, while he was held in Bagram, Americans killed three Afghans in custody there. (See Human Rights First report entitled Command’s Responsibility, http://www.humanrightsfirst.info/pdf/06221-etn-hrf-dic-rep-web.pdf. and description of movie Taxi to the Dark Side, http://www.humanrightsfirst.org/us_law/etn/misc/film/index.asp).

During the course of this statement by Jawad, Col. Kohlmann tried to continue questioning Jawad about acceptance of counsel, but also gave him some leeway to say what he wanted. In the end, Jawad essentially shut down, saying he had a terrible headache, refusing to accept Col. Sawyers or any other military counsel, saying he knew no civilian lawyer to take his case, and saying he did not want to represent himself and did not want a trial. Col. Kohlmann told Jawad that the proceedings would continue nonetheless and ordered Col. Sawyers to continue as Jawad’s counsel for the time being.

After the prosecutor, Army Lieutenant Colonel Darrel Vandeveld, read a summary of the charges, Col. Kohlmann asked Jawad for a plea. Since entering any plea would cut off the defense right to file certain motions under commission rules, Sawyers said they would enter no plea. Thus ended the arraignment.

After the arraignment, Col. Kohlmann considered a request for excusal by Col. Sawyers. Some observers predicted this request was based on Jawad’s unwillingness to be represented by a uniformed U.S. military lawyer—a not-uncommon situation in Guantánamo. But this was different. The military commissions’ defense office, it seems, is relying increasingly on reserve officers called to active duty on one-year orders. Sawyers—who has met with Jawad numerous times over the last five months and even traveled to Afghanistan to help prepare the defense—leaves active duty and returns to civilian life on March 18, when he will no longer be able to serve as Jawad’s counsel. This is yet another variable in a military commission system that is being made up along the way.

Attorney General Mukasey should have seen all this. When he was here in February, he reportedly focused on preparations for the trials of Khalid Sheikh Mohammed and the other “high value” detainees. But what we saw yesterday was an inherently limited system, not well equipped to deal even with predictable issues arising at the simplest stage of the proceeding.

Depending on your perspective yesterday, you might have viewed Jawad as keenly aware of his audience or obviously damaged by five years of isolation and abuse. Either way, it is hard to conceive of this military commissions system being able to cope effectively anytime soon with the “high value” detainees.