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.

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“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.

President-elect Obama: It Doesn’t Gitmo Urgent Than This

Gabor Rona – Human Rights First’s International Legal Director – will be in Cuba to monitor the proceedings and report back on events as they unfold.

January 16, 2009: Next week, for the umpteenth time, a representative of Human Rights First (me) will embark on a trip that should not occur, to a destination that should not exist, to witness events that should not happen. But this time is different. All eyes at the military commissions in Guantánamo next week will not be on the accused, the lawyers, the judges, or the jailers. They will instead be focused on a podium in Washington, D.C., where, shortly after 10:00 a.m on January 20, President-elect Barack Obama either will, or will not, say the magic words: “Today, and as my first official act as President of the United States, I announce the immediate suspension of military commission trials at the U.S. detention facility in Guantánamo.” Of all the abuses of law, reason and morality by his predecessor, why should Obama take this one on first? The reasons are both practical and symbolic.

Obama can announce an end to torture and extraordinary rendition to countries where detainees are abused, but it will take time to unravel all the legal and institutional packaging by which the Bush Administration attempted to both deny and justify those policies. He can express his intention to investigate the abuses of the Bush Administration, and even, although it seems increasingly unlikely, to prosecute those who planned and ordered detainee torture and abuse, but the question of how is fraught. He can declare his intention to close the detention facility at Guantánamo, but it will take time to figure out what to do with the detainees – some suspected of serious terrorism offenses, some innocent of terrorist activity but tainted by famously irresponsible rhetoric of Bush Administration officials who branded them all as “the worst of the worst.”

But there’s one thing he can accomplish with little more than the time and strength it takes to say it. Of all the illegal, counterproductive and just plain irrational architecture that the Bush Administration has designed to combat terrorism, nothing is easier to bring to a screeching halt, and there is no better way to signal a break with the past than to suspend the Guantánamo military commissions.

The costs of even a brief delay are great. Within days after President-elect Obama takes office, the military commissions are slated to begin trying a child soldier for the first time in modern American history, contrary to the tenets of international law and common decency. Whether or not Omar Khadr is found guilty, the stain on the Obama Administration and on the American judicial system will be indelible. To put it in strictly legal terms, the harm in being tried by a flawed tribunal is not merely the risk of being found guilty. It is also in being subjected to an illegal process in the first place. This is not just one human rights advocate’s opinion. It is a fact of logic and law that has been articulated numerous times by the U.S. Supreme Court, including by one of its most outspokenly conservative members, Justice Antonin Scalia.

Since it is so easily accomplished, President-elect Obama’s inaugural announcement to suspend military commissions would be powerful evidence that he meant what he said in his application for the job that the majority of voters hired him to accomplish – to bring change to America. The message would be clear not only to all Americans, but the entire world, that he will act decisively to fulfill his stated commitment to end these illegal proceedings, to transfer the cases that should be prosecuted to the federal criminal justice system where they belong, and to begin the long march of returning his country to the rule of American and international law.

The Relevance of Discovery in Trial

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 8, 2008: Today’s military commission hearing in the case of 21-year-old Omar Khadr was all about discovery—what documents the government will turn over so that Khadr can effectively mount a defense. One thing was clear: the government is in possession of documents it does not want to disclose to the defense.

In the third discovery session since Khadr was arraigned in November 2007, Judge Col. Peter Brownback went through a list of outstanding discovery requests. Some of the requests include: an al Qaeda membership list from 1989 onwards; documents pertaining to the Libyan Islamic Fighting Group (LIFG) and contacts between al Qaeda and LIFG; copies of the DIMS (Detainee Information Management System) records relating to Khadr while in Guantánamo; documents relating to the men with Khadr during the firefight on July 27, 2002; policy on SERE (Survival, Evasion, Resistance, Escape) Interrogation Techniques; documents regarding the recruitment and use of children by al Qaeda, the Taliban or associated forces; and investigator notes of witness interviews.

The Charges

Toronto-born Khadr is accused of throwing a hand grenade in a July 2002 firefight between U.S. forces and al Qaeda suspects in Afghanistan. The grenade allegedly hit Special Forces medic Sgt. 1st Class Christopher Speer, who died of his wounds. Khadr was 15 years old at the time. Khadr has also been charged with attempted conspiracy with Osama bin Laden and associates of al Qaeda and with providing material support for terrorism. He is accused of providing himself to al Qaeda, which engaged in hostilities against the United States, including attacks in Kenya and Tanzania in 1989, the attack against the USS Cole in 2000, and the September 11, 2001 attacks.

Discovery Related to Issues of Ill-Treatment

The defense has claimed that Khadr was coerced into making statements as a result of harsh interrogations. In a redacted affidavit written in 2008, Khadr says that during his three-month imprisonment at Bagram, he was interrogated approximately 42 times. He also says that he was interrogated over 30 times in Guantánamo. He alleges that while in Bagram, he was hooded, sexually humiliated, threatened with attack dogs, and made to stand with his arms tied above him after suffering bullet and shrapnel wounds. At Guantánamo, Khadr says, “I was not provided with any educational opportunities, no psychological or psychiatric attention, and was routinely interrogated.” He also alleges that he was subjected to prolonged periods of isolation, sensory deprivation, stress positions, temperature exposure, and humiliation. Khadr claims that he was frightened into telling interrogators what they wanted to hear.

The defense has requested production of DIMS (Detainee Information Management System) records, which document Khadr’s day-to-day treatment in Guantánamo, to show that Khadr was punished for his failure to cooperate with interrogators. Judge Brownback ordered the government to produce the records by May 22 and said that, although he understand concerns about protecting prison officials’ identification, two members of the defense team, including lead counsel Navy Lt. Cmdr. William Kuebler, have the appropriate security clearances and are under a protective order. In the alternative, the judge ordered that the information be provided with the names of personnel redacted. Brownback warned that failure to produce the documents could result in an “abate[ment]” of the proceedings.

As part of the DIMS request, counsel referred to two government investigations: a 2005 Naval Criminal Investigation and a 2006 U.S. Army Criminal Investigation Division reportabout abuse in Bagram. The Army CID investigation was terminated because it involved “Sgt. C,” who had interrogated Khadr and was being court-martialed for his involvement in the death of a Bagram detainee. That investigation did, however, corroborate that Khadr was made to stand for hours with his hands chained above him. (Sergeant Joshua Claus was one of 15 US military personnel charged in connection with the murder of two men at Bagram five months after Khadr’s arrival. Claus was court-martialed for assault and “maltreatment of a detainee.” He pled guilty and was sentenced to five months in jail).

Counsel also made a motion to seek production of the December 2002 SERE Standard Operating Procedure (SOP), which apparently lists a set of abusive interrogation methods employed at Guantánamo. The SERE program was designed to help U.S. troops resist breaking under abusive interrogations if captured by enemy forces. As part of the SERE program, trainees are subjected to abuse, including sleep deprivation, sexual and cultural humiliation, and, in some instances, waterboarding. Prosecutor Marine Major Jeffrey D. Groharing admitted that the government has the SERE SOP, but said that it was not official policy at Guantánamo and therefore not relevant for discovery purposes. Notably, a March 2005 sworn statement by the former chief of the Interrogation Control Element at Guantánamo, however, said that SERE instructors taught their methods to Guantánamo interrogators. (The ACLU also made public a redacted document, obtained through Freedom of Information Act litigation, which referred to the December 2002 document).

Defense counsel has also sought the production of a February 2003 videotape of Khadr’s interview with Canadian officials to show that Khadr’s mental state is that of someone who has suffered abuse. Counsel also informed the court that a request has been made to the Convening Authority to allow Khadr to be evaluated by a psychiatrist and to show the expert the 2003 videotape. The government has agreed to produce the video but will alter the images of government officials.

Discovery Needed to Refute Charges

Defense counsel argued that because the government has charged Khadr with being associated with al Qaeda, it needs the membership list of al Qaeda, information about LIFG, an organization associated with al Qaeda, and names of known co-conspirators. Prosecutor Groharing objected, stating that the documents are not relevant and that Khadr had confessed to being a member of al Qaeda. Defense counsel replied: “a coerced statement by a 15-year-old is not proof.” He elaborated that “this is a case about a firefight, but the government has made it about Khadr’s alleged involvement with al Qaeda activities in 1998, the USS Cole, and 9/11—things that Omar has nothing to do with. This has consequences. . . .The nature of charges leads to scope of discovery.”

Judge Brownback asked the prosecution whether they knew the names of Khadr’s co-conspirators. The government stated that Khadr conspired with Abu Laith al-Libbi, former head of LIFG who was killed by U.S. forces in 2008, and other unknown individuals shown with Khadr in a bomb-making video.

No Discovery, No Trial Date

Judge Brownback asked the prosecution several times whether it had the documents requested, and the government’s answer was affirmative. Yet the government has not provided those documents to the defense. A frustrated judge at one point said: “I have been badgered by the prosecution to set a trial date. . . but one need’s discovery. . . This is incumbent on all to comply. If you [referring to the prosecutor] want to try the case discovery is needed. Get on with it.”

Maj. Groharing repeated the government’s request for a trial date because victims are “waiting for justice.” He then said that Lt. Cmdr. Kuebler spends more time “writing op-eds” and trying to put political pressure on Canada to release Khadr instead of preparing for trial. Judge Brownback replied that, according to the commission, “how opposing counsel best allocates time is not relevant to setting a trial date. Trial schedule is based on whether we are ready for trial.”

“If there are any policies dealing with how we are to treat and handle minors who are captured, I don’t care what you think—that’s discoverable.”

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 11, 2008: Today’s defendant, Mr. Omar Khadr, a 21 year old Canadian citizen, was 15 years old when he was wounded and captured in Afghanistan. He has been imprisoned at Guantánamo since he was 16 years old. Mr. Khadr’s case has gained a good deal of notoriety; it is the subject of at least one book and has been covered on 60 Minutes and elsewhere. The government has charged him with murdering an American soldier by throwing a grenade in the course of a firefight that occurred in Afghanistan on June 27, 2002. He is also charged with attempted murder, conspiracy, providing material support for terrorism, and spying. The United States is seeking life in prison for Mr. Khadr. There is great international concern over the issue of Mr. Khadr’s age at the time of his alleged offenses and the appropriateness of bringing charges against him. The American government asserts that Mr. Khadr can be tried and punished as an adult, and the Canadian government has not intervened. Prosecuting someone for alleged war crimes committed as a juvenile is virtually without precedent, particularly by western nations in modern times.

Mr. Khadr’s Case

Mr. Khadr’s charge sheet alleges that he received training from al Qaeda members in June and July 2002. He is said to have scouted American positions (apparently the basis of the spying charge), and to have engaged in planting improvised explosive devices after the training. It is also alleged that, on July 27, 2002, Mr. Khadr and other al Qaeda members engaged American and Afghan forces in a firefight at a compound occupied by al Qaeda members or affiliates. Mr. Khadr is accused of throwing a grenade at American troops during the firefight, resulting in the death of an American sergeant. At some point, Mr. Khadr was shot twice in the back. Ultimately, he was taken prisoner.

The initial public accounts of the incident implied that Mr. Khadr had been lying in wait for American troops to enter the compound after the fight occurred and that he surprised them by throwing a grenade as they entered. Subsequent accounts have called into question the accuracy of this version. Today defense counsel raised the possibility that based on eyewitness reports, the sergeant may have been killed by other fighters or even by friendly fire. Defense counsel also reports having received more than one version of the initial incident report, prepared immediately after the firefight, and asserts that the government may have altered the report to strengthen the case against Mr. Khadr. The possibility that Mr. Khadr’s case is being brought as a result of political interference was also raised.

Today’s Proceedings: Ability to Mount an Effective Defense and “Equality of Arms”

The hearing today addressed the status of numerous discovery motions filed by the defense and some other procedural issues. Mr. Khadr was present but did not speak. The defense has filed more than 50 discovery motions, requesting the disclosure of documents, witness names, and physical evidence. (Motions filed prior to about two weeks ago are available at the military commission site at http://www.defenselink.mil/news/commissionsKhadr.html.) The military commission rules require that the government provide the defense with relevant and material information, particularly anything that tends to prove Mr. Khadr’s innocence or provides mitigating and extenuating factors for sentencing. Government prosecutors say they are doing everything they can to respond to the defense requests, but at the same time, they have actively objected to many of those requests. This is not unusual trial practice, but it does highlight the difficulties of mounting an effective defense and the inherent lack of “equality of arms” built into the military commission rules. Today the prosecutor repeatedly asserted that defense counsel had not explained the materiality of the requested information.

There is an inherent imbalance in this and all military commission cases. The government controls almost all of the information, in particular the classified information. This is despite the fact that defense attorneys have appropriate security clearances. Mr. Khadr’s defense counsel, for example, is a Navy Lt. Cmdr. with a top secret clearance. In one instance today, the prosecutor argued that, in his view, the defense did not have “the need to know,” a standard military term of art generally applied to classified information. The prosecutor also asserted a “heightened standard” with regard to classified information that, in his view, the defense had not met. It was quite clear from this exchange that the government has power to deny or delay the exposure of information to the defense. On one occasion, the trial judge noted that the prosecutor had referred to a defense discovery motion as “voyeuristic.”

The prosecutor repeatedly asked the military judge, Col. Peter Brownback, to explain the basis upon which he would rule on discovery issues. The stated purpose of this request was to give the prosecutor a basis for appealing the judge’s decision to the Court of Military Commissions Review (CMCR). The CMCR is a new and unique military court set up under the MCA as the first level of review from a military commission prior to review by a federal court. Under the MCA, the prosecutor has the right to file interlocutory appeals of adverse discovery rulings regarding classified information. The defense can appeal adverse rulings on access to classified information only after a verdict is reached, and when reversal is less likely.

There were several instances discussed today in which information had been slowly extracted from the government or where the government had not been forthcoming. A video from the firefight in Afghanistan was only recently found in storage at Guantánamo. Multiple reports written by the commander of the unit that provided significantly different accounts of the battle and of Mr. Khadr’s individual role were only recently located. The prosecutor cited the late emergence of these items as proof that the government is searching diligently for information, but the opposite interpretation is just as plausible.

In response to some of the requests, the prosecution has been very forthcoming with documents, which highlights another imbalance between the prosecution and defense. One member of the defense team informed me that the defense has received approximately 20,000 pages of documents to review. The prosecutor has a team of six attorneys and has been preparing its case for years. The detailed defense team has two attorneys and has had much less time to prepare.

I want to end this part of today’s discussion with a quote from a passionate argument the prosecutor made to the military judge: “We take our discovery obligations seriously, and have gone well and beyond what the drafters of the Military Commissions Act expected at a military commission…We have volumes of discovery requests that do not spell out any explanation as to why they would need the material.” I have to infer from this that the prosecution believes that the drafters of the MCA did not expect a serious discovery process, but something more abbreviated than that conducted in other more established criminal systems.

Prosecution Theories of Culpability

Because the MCA creates a new body of criminal law, it is unclear how the offenses included in the MCA will be defined in practice. Today the prosecution provided some insight into how broadly it construes the war crimes enumerated in the MCA. For example, the prosecutor articulated a theory of conspiracy that is exceptionally broad. Essentially the government asserted that anyone who joins or cooperates with al Qaeda in any way is a co-conspirator in any crime that al Qaeda intends to commit or commits. The logic articulated by the prosecutor was that, if someone joins or supports al Qaeda, knowing the organization’s history of terrorist activity, the mere act of joining the organization makes one guilty of conspiracy. Conspiring to commit a specific act of terrorism is not required. This could make designation as an unlawful enemy combatant synonymous with having committed a war crime, although the standard of proof is higher before a military commission.

Finally the prosecution seems to be endorsing a felony murder theory. In most criminal jurisdictions, a person who commits a felony during the course of which someone is killed may be tried for murder, even if the person had nothing to do with the actual killing and even if the death was an indirect result of the crime. There is no provision under the MCA, however, for this theory of culpability. The MCA defines murder as “intentional kill[ing of] one or more persons, including lawful combatants, in violation of the law of war.” During today’s press conference, the chief prosecutor Col. Morris suggested that Mr. Khadr could still be convicted of murder, even if the sergeant was killed by friendly fire, because Mr. Khadr participated in the firefight during which the sergeant was killed. This may significantly extend the scope of the MCA as it is written.

Final Observations

Although Judge Brownback made few rulings today, he forcefully asserted himself during at least one point. He made the following statement regarding the discovery of mitigation evidence: “If there are any policies dealing with how we are to treat and handle minors who are captured, I don’t care what you think – that’s discoverable.” The fact that Mr. Khadr was 15 when he was arrested is not going to change. However, the rules related to juvenile prosecutions—like almost everything else associated with the conduct of the military commissions—are going to be made up along the way.

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.