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Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.
Read daily updates by Human Rights First representatives who monitored the military commissions.
Feb 9, 2008 - New Legal System Presents Problems for ProsecutorsDISCLAIMER: The following remarks were dictated by Deborah Pearlstein from Guantanamo Bay. She has made minor edits to clarify the original text since her return to the United States.
Day Five/Aug.27: The End of the Beginning
Today began just like each of our days here at Guantanamo Bay – very early in the morning and with a spectacular sunrise. Rather than taking our usual heavy ferry transport from the remote, leeward side of the bay where we’ve slept to the windward side for the day’s proceedings, the Coast Guard today gave us a ride on a small, fast harbor patrol boat (separate from the press and few migrant workers who had been our commuting partners earlier in the week).
Events in the Commission chamber were similarly efficient, a stark contrast to the sense of confusion that prevailed as the Commission struggled with serious translation difficulties and the defendant’s request to represent himself yesterday (see Day Four). Commission participants today devoted just over an hour to the case of Ibrahim Ahmed Mahmoud al Qosi of Sudan. The government’s charge sheet accuses him of conspiracy with Osama bin Laden and others to commit terrorism, attack civilians, and other offenses deemed “triable by Commission.” The government alleges that al Qosi provided logistical support to al Qaeda, including managing al Qaeda funds, helping to transport explosives and weapons from Sudan, and acting as bin Laden’s body guard and driver until his capture after the U.S. invasion of Afghanistan in the fall of 2001.
Al Qosi, dressed like Al Bahlul had been yesterday in casual slacks and a knit shirt, sat next to his appointed military defense counsel, Lt. Col. Sharon Shaffer, and a translator retained by the defense. Following the now familiar script swearing in counsel and other participants, Presiding Officer Brownback turned immediately – and for the first time this week expressly – to the issue of translation. It is the duty of the translator, Brownback began his remarks, to provide an accurate translation of everything said, to translate only the words actually spoken, and not to explain, repeat questions, clarify or summarize. The three official commission translators – contractors through a company called International Language Services, hired by the military – were unchanged from the day before. But Brownback’s decision to devote several minutes to the importance of accuracy (at pains to speak slowly to allow the non-simultaneous translation to proceed) seemed a clear indication that the Commission was aware of the severe inadequacies that contributed to the confusion in Al Bahlul’s proceedings. It is one of the Commission’s most important early tests whether it can resolve this basic issue of translation quality and fairness before any detainee next steps into Commission chambers.
The balance of the proceedings were devoted to resolving the status of Al Qosi’s military defense counsel, who was appointed as Deputy Chief Defense Counsel to represent Commission defendants in February 2004, and in May was informed that she had been selected for reassignment (a promotion in the usual military court system to the role of trial judge). Shaffer’s early request for an assistant counsel she asked for by name had been denied, and in June when Al Qosi’s conspiracy charge was referred to the Commission, Shaffer was now in an ethical bind. She had to report to her new fulltime assignment in July, and Al Qosi would fall through the cracks. Shaffer filed a motion to withdraw as counsel so that another would be appointed, and the presiding officer suspended all activity in the case on August 6 until the issue could be resolved. Shaffer thus arrived in the Commission today without any of the motions or preparations for voir dire that defense counsel earlier in the week had put forward.
Just days before Al Qosi’s first scheduled appearance before the Commission today, Shaffer managed to secure orders from her new post detailing her to the Commission until her representation of Al Qosi was complete (she told us as we sat in the Commission room, waiting for proceedings to begin). As she explained to Brownback, the conflict issue had just been resolved; the resource issue hadn’t. Her trial team was still just her and a translator -- no co-counsel, no paralegal, no other administrative support. Brownback and prosecutors seemed to acknowledge these concerns, and appropriately set a pre-trial schedule for voir dire and other motions on the condition that Shaffer receives the resources she needs. voir dire was set for October 4 (would have been earlier, but for the ongoing renovation of the building in early September). A hearing on pretrial motions was set for the first week of November, with a tentative trial date of December 7 (which would make Al Qosi the first of the first 4 defendants to move to trial). In the meantime, Mr. Al Qosi returns to his cell.
Post-Commission briefings by defense and prosecution counsel shed more light on the inadequacies that have emerged so clearly this week. Shaffer -- a well-spoken, no-nonsense, zealous advocate – met with press and observers early this afternoon and made no bones about the inadequate conditions of defense’s resources. “It’s a shame,” she said when asked about her feelings about having been earlier denied assistant counsel, that proceedings of this historic significance are being handled this way. Her client told her just after leaving the courtroom that all he got from the translation through his headphones were broken, fractions of sentences. It’s one thing to have only a partial understanding of what’s going on in these preliminary proceedings, Shaffer said Al Qosi indicated in his holding cell just outside the Commission chambers. But how could this work for trial when he needed really to know what was going on? Still, Shaffer said, Al Qosi was “relieved” at least to have a lawyer again.
As concerning as the early denial of her request for additional counsel – which she believed would soon be resolved – was the denial of all but a small amount of the discovery Shaffer had sought to build her client’s defense. Shaffer has asked for access to multiple potential witnesses, including investigators, alleged co-conspirators, and translators who served in Al Qosi’s interrogations. All of these requests so far have been denied by the Office of Military Commissions on the grounds (in June, two months before proceedings began) that they were premature. Shaffer had no trouble, in contrast, meeting with Al Qosi’s family in Sudan. “I have visited them,” Shaffer stated. “They are very concerned.”
Chief Prosecutor Swann then spoke to the assembly for the first time all week, offering assurances that he had told the Chief Defense Counsel that he would do anything he could to assist defense in getting the resources they needed. Swann, who seemed irritated, aggressive, and impatient with questions from the outset, did himself no favors with the media. Apart from his general assurance, he seemed to deflect most of the questions defense counsel had raised about resources, translation concerns, and discovery – repeatedly stating that whatever the issue, everyone here and no one more than he wanted to make sure these trials were “full and fair.” Swann did offer some specifics on next steps, including the news that there were 9 more Guantanamo detainees who would soon be charged and referred to the Commission over the next few months, including some whose names the public would recognize as previously arrested terrorist suspects.
The press and we observers spent the afternoon packing and trying to think (and write) about the bigger picture of what happened here this week. It was already unclear which of the media outlets would send correspondents back to cover all of the proceedings (including the substantive pretrial motions now scheduled to heard in November); perhaps some could come back for one of the trials in January. The military staff involved in the Commissions had also been having daily meetings on how things were going, and would soon be facing their own substantial after-action review. At no remove yet at all, I suspected perspective would be hard to achieve.
Nonetheless, I am left thinking about at least three themes that carried through the week and will be on our minds when proceedings resume. First was the chance to see in action some of the structural commission rules that Human Rights First had commented and reported upon as the Commission developed over the past three years. It is one thing to say that the fusion of judge and jury was inconsistent with U.S. traditions and seemed inconsistent with fair trials. It was another to hear the Presiding Officer try to explain to non-lawyer Commission members (who will be both jury and judge) what “jurisdiction” means, or to hear one Commission member admit with admirable candor that he wasn’t really sure what the Geneva Conventions were but knew that there were three of them (there are four). There are some pretty good reasons why the U.S. legal system generally separates questions of fact (which lay juries decide) and questions of law (which are left to judges). This week was an object lesson in those reasons.
Second were the failures – of translators, resources, and planning – not at all a function of the military commission rules. There was no good reason, and no very good excuse, for such problems. All at Guantanamo seemed to agree that these were problems that should be remedied. It gave me hope that they will soon be remedied, but made it much harder to fight skepticism that the Commission process was actually designed to take seriously the task of answering open questions of a defendant’s innocence or guilt.
Third was the chance for those present to confront as individuals what had for years been hundreds of generally undifferentiated Guantanamo detainees. We can now say that Hamdan looked small and vulnerable; Hicks beloved by his family; Al Bahlul (despite all translation problems) educated and articulate; and Al Qosi for whatever reason determined to keep the military lawyer he was assigned on his case. Some or all of these men may in fact harbor enormous ill-will toward the United States. But for those who sat feet from them in the Commission chamber, it should be much harder to picture just “Gitmo” writ large.
Finally, at risk of distracting from the real issues at Guantanamo, I offer a word about my own role this week. Over the past 25 years, my organization has engaged in trial observation and reporting in countries around the world, from the Middle East to South America. We have also participated – as counsel, amicus curiae, or otherwise – in countless legal proceedings in the United States. As a domestic human rights lawyer focused on U.S. national security, I always expected I would do far more of the latter. The fundamental fair trial rules that we human rights observers look for in trials abroad – in nations transitioning to democracy or in nations with a history of unfairness – have been so well engrained here in the United States for so long, I really never considered I would be reviewing U.S.-run proceedings against that kind of baseline compliance. We know how to try people in the United States. It would be crazy to start building a new legal system from scratch. But this past week, as we shuffled in and out of the still-being-renovated court building, using adjacent port-o-potties on top of windswept hill on this hot, dusty base, it felt very clear that we were trying to do exactly that.
In many respects, the situation was unique for all of us – for military lawyers trying to practice in something other than well established courts martial, for the non-lawyer commission members trying to understand basic concepts from first-year law school, for an international press corps (unsure whether to send Defense or Justice Department correspondents) trying to put these proceedings in perspective, and for the Gitmo base military staff trying to cope with an influx of demanding visitors whose roles they were only beginning to understand. It was as though everyone had been thrust from some darkened room into the blinding sun, all blinking to adjust to the light. The relative novelty of the situation no doubt contributed to the camaraderie among all of us that last week would have seemed extraordinarily unlikely.
In some ways, this dynamic made my role more difficult; I am here to be independent from all of these actors, to interact with them skeptically as I would a stranger. I remain hopeful I’ve managed to do this regardless. In other ways, I am deeply indebted to my colleagues from the Commission staff, base staff, media, and fellow NGOs, who were also all away from their families under less-than-ideal conditions and were also just trying to do their jobs. So I would be remiss if I neglected to thank all of them, particularly the uniformed Legalmen, Lieutenants, Captains, Majors, Colonels, and many others who played the none-too-easy role of our keepers this past week. (I would include their names here but err on the side of caution in case they or their families would prefer to stay out of the public eye. Suffice it to say, they know who they are.) It is my hope that we will have an opportunity to work together again someday under circumstances in which there is no question that justice is being done.
Day Four/Aug 26: A Defendant Asks to Represent Himself
August 26, 2004
Despite the best efforts of a lot of well meaning people here, this was an embarrassing
day for American justice.
The translation issue -- the roots of which have been
chronicled in each of my previous updates -- finally erupted. And, the commission
system proved itself to be unprepared for even the most basic test of its effectiveness.
Today was the preliminary hearing for Hamza Ahmed Sulayman al Bahlul of Yemen.
Mr. al Bahlul is accused of conspiring with Osama bin Laden and others to commit terrorism. His charge sheet describes more than a dozen "overt acts" committed between 1999 and 2001, including training at an Afghan Al Qaeda military camp and preparing videotapes intended to inspire violent attacks against the United States and other countries. He is also alleged to have served as bin Laden’s armed bodyguard.
It was a dramatic and eventful day – because of the translation problems, because the defendant said he wished to represent himself, and because the defendant made a sudden and startling statement during the proceedings. He announced that he was a member of al Qaeda and appeared poised to make some additional comment related directly to the attacks of September 11.
The proceedings departed from the relative formality of the previous two days when Mr. al Bahlul announced that he wanted to represent himself. Appointed military defense counsel had known of the issue for some time, and had made Col. Peter Brownback, the Presiding Officer, aware that it was coming before the day’s events. The Presiding Officer initially told him that he could not – that the rules required a defense counsel to be a U.S. citizens and a military officer with security clearance.
Rather than determining Mr. al Bahlul’s willingness to proceed under the rule as stated, Col. Brownback then tried to engage Mr. al Bahlul in a discussion of whether he was qualified to represent himself, and whether he wanted to argue that the rule should be changed. From my seat in the courtroom (and recalling his fairly open answer about the legality of the commission process as a whole from earlier in the week), it struck me that Col. Brownback was trying to be fair. He had read the rules about self-representation one way, but wanted to leave the door open to a challenge. But the translation issues – and Mr. al Bahlul’s desire for a clear answer on the rules of the commission that have been anything but clear – made the exchange impossibly chaotic and confused.
To pick one small example, at one point, the Presiding Officer asked Mr. al Bahlul if he wanted a lawyer from Yemen.
The translator gave Mr. al Bahlul’s
answer as “I know some law in
Yemen.”
At that point, Mr. al Bahlul’s assigned defense counsel said that the statement
was a mistranslation. A translator retained by the defense counsel said: “My
understanding was he knew some people who practiced law in Yemen." Mr. al
Bahlul asked if defense counsel could not interrupt.
Far more damaging was Mr. al Bahlul’s sudden comment during an exchange about the concern that self-representation would mean he would not have access to all the evidence against him. After saying he was speaking of his own will, and (as I later learned from one of the Arabic-speaking journalist’s translation) confessions were the best evidence of all, Mr. al Bahlul said: "I am from al Qaeda and the relationship between me and Sept. 11..."
He was quickly cut off by Col. Brownback, who instructed the military commission panelists to disregard the comment; since the defendant was not under oath, his admission could not be considered evidence.
The prosecution objected to Col. Brownback's statement, saying that he was misreading the law. Col. Brownback then ordered a recess to meet with counsel on both sides. When the hearing resumed, Mr. Al Bahlul never returned to or expanded on his statement.
In the end, the Presiding Officer ordered the assigned defense lawyers to file legal challenges to change the rule. The challenge would need to be addressed to the Appointing Authority, the official in charge of the military commissions. Brownback, at that point, suspended the day’s proceedings pending an answer.
I believe the Presiding Officer was trying his best to figure out what the defendant wanted. But it was made impossible by the nature of the proceedings – by the confusing and unclear rules and the unclear authority of the Presiding Officer.
These
exchanges raised many issues about the preparation for these trials.
On the translation front: the English to Arabic and Arabic to English translations
have been disastrously poor -- poor in a way that have made proceedings, especially
today’s, incredibly complicated. This kind of problem in proceedings of
this importance are inexcusable.
After today’s events, the military is clearly aware of the translation issue. I believe that they now understand that it makes everyone – and the commission process -- look bad. And of course, it is unfair. The question now is how quickly they will fix it.
The second issue about preparation deals with the defendant’s request to represent himself. This is a completely predictable request for the defendant to make. Yet the commission seemed unprepared to deal with it. The Presiding Officer did not know what to do. In any regular criminal proceeding, requests by the defendant to represent himself are handled as a matter of course. They are not always granted – for example, if the defendant is incompetent or for other reasons – but there is a standard approach to addressing them. The confusion today was because there is no precedent here. There is nothing standard. And what rules there are are made up as we go along.
That gives a flavor
of the proceedings for the day. Afterward, our group of human rights and legal
observers received a tour the commission building.
We saw the holding room where the defendant is kept. It’s small with one
window that looks into an adjacent room; this window allows the defendant to
be observed. The room has a couple of chairs and in front of one chair is a metal
plate in the floor, with chains. When the defendant needs to be secured, the
chain in this plate on the floor is fastened to his leg chains. There’s
a small bathroom without a door right off the holding room.
We also saw the defense counsel’s office, and as I’ve chronicled on earlier days, there is a real disparity in resources for the prosecution and defense lawyers. The prosecution counsel’s rooms have already been renovated. As for the defense counsel, they are all in one, not-very-big room. There are four desks pushed up against the wall, and four computers. Some of the lawyers have brought their laptops. One day this week, there were 12 or so people in the room at once. A conference table they had earlier in the week had since, without explanation, been removed. The lawyers are representing different clients and it is pretty awkward to have everyone in one room – not just from a logistical point of view, but from a privilege point of view.
The defense counsel should not have to spend the first week of the commissions in one room that’s far too small to meet their needs and with facilities that are inadequate to promoting a vigorous defense.
Military commission officials say they are going to fix it. They say that, but it’s not as if this week was a trial run. Despite all that we saw today and throughout the week, this is the real thing.
Day Three: David Hicks' Father Speaks
August 25, 2004Today was a heartening day, in a way, because of the professionalism of the lawyers involved and their vigorous efforts to try to make the proceedings fair. But also a heartbreaking day of watching a dysfunctional system in action.
It continues to be hard to watch everybody’s best effort to make something decent and fair out of this process, which is emerging as something that is neither decent nor fair.
Today we saw the personal cost of unfairness in new ways. I’ll cover three things from today.
1. David Hicks and his parents.
2. The continued dysfunction of the proceedings.
3. The emerging camaraderie here.
David Hicks and his parents.
Today was the preliminary hearing for David Hicks. David Hicks, 29, is one of
two Australians detained on Guanatanmo. Mr. Hicks' family believes that David
was captured by Northern Alliance forces in Afghanistan, some time in early December
2001, and handed over to U.S. troops shortly thereafter, as an alleged member
of a Taliban militia group. He has been at Guantanamo since January 2002.
In June 2004, formal charges were issued against Mr. Hicks, with counts of conspiracy to commit war crimes, including terrorism; attempted murder by an unprivileged belligerent; and aiding the enemy. The charge sheet alleges that Mr. Hicks underwent military training at al Qaeda training camps in Afghanistan during 2001; that he returned to Afghanistan from a visit in Pakistan after September 11 to link up with "his al Qaida associates"; and that he then joined up with forces engaged in combat against the U.S.-led Coalition.
The charges do not allege that Mr. Hicks actually killed or injured any individual. Marine Corps Major Michael Mori is the assigned military defense counsel for Mr. Hicks.
Today’s proceedings were devoted, much like yesterday’s, to defense counsel questioning the military commission members about their ability to deliver a fair and impartial verdict. I’ll address this more below.
But first I
want to tell you about the most dramatic part of the day – the
remarks by Mr. Hicks’ parents at a press briefing after the day’s
proceedings.
This added an emotional aspect to the day that we had not yet experienced.
Mr. Hicks’ parents haven’t seen their son in years. There was a moment
before the proceedings where they embraced, and Terry Hicks, David’s father,
described this to us in a press briefing after the proceedings.
Terry Hicks told us that it was much of what any of us would imagine. The family hugged and kissed and cried. They discussed family – in particular a cousin of David Hicks who was recently married. David Hicks asked his parents if family members were still on his side. His parents told him that they were, of course, and that so were most of the Australian people.
There were a very few moments when Terry Hicks seemed to be struggling with his emotions. I will paraphrase much of what he said. If we can get the transcript of his remarks, we will post it. Here are some highlights of what he said.
• Terry Hicks said David is
worried about his own mental health, mainly because of his isolation – that
he is finding it difficult to cope when he is alone. (David is in solitary confinement.)
• Terry Hicks thought his son looked well and even gained a bit of weight,
though he wondered aloud if that might be from limited exercise.
• David Hicks told his parents some unpleasant stories of abuse. While the
son said that he hadn’t experienced physical abuse on Guantanamo, he experienced
it when he was first captured in Afghanistan. He said the abuse at Guantanamo
was psychological.
• Terry Hicks said his son was happy with the day’s proceedings.
A reporter asked Terry Hicks if he felt any anger toward his son. The father
said,“I don’t feel any anger toward David. He’s his own person
and this could have happened to anyone.”
Another reporter asked about letters – had the family received letters from their son, and had David Hicks received their letters? Letters had been exchanged, the father said, but all had been censored. What was most surprising about this, to the father, was that “all the love bits had been taken out.” In the letters David Hicks received, the government censored references that indicated love and support. The “we love yous” and “we support yous” had been blacked out.
Terry Hicks was asked about his feelings toward the United States. He said he harbored no ill will against the United States. His anger, he said, was not with the American people or the military, but with those in power.
He ended by saying that his main aim was to get his son back to Australia to have proceedings take place there. When asked how it was to say goodbye. Terry Hicks said, “You can imagine it was an emotional parting. It’ll be some time before we see him again.”
Continuing dysfunction of the process.
Today was devoted to voir dire in Mr. Hicks’ case. (See yesterday’s
entry for a description of this process.) Today’s voir dire was much the
same as yesterday’s, but things went much more quickly today because there
was no need for translation – the proceedings were all in English. The
defense counsel also introduced the transcript from yesterday, so much of today
focused on follow-up questions.
Again, the process focused on the ability of the commission members to hear and judge the case impartially. Defense attorneys have aggressively questioned the ability of the commission members – who will act as the jury in this case – to listen to the evidence impartially. Career military men, some of the commission members actually played an active role in Afghanistan operations which led to the detention of some of the men whose cases will be decided by the commission.
Some disturbing evidence about the potential partiality of the judges emerged today. Col. Peter Brownback, the Presiding Officer, who wields enormous authority in the day to day proceedings, turns out to be a longtime close friend of the Appointing Authority, Retired Major General John D. Altenburg. Maj. Gen. Altenburg roasted Col. Brownback at his retirement parity and Col. Brownback gave the roast at Maj. Gen. Altenburg’s retirement party. It’s a huge conflict and deeply concerning. This is in some ways like the prosecutor in a criminal case and the lead juror being best of friends.
The structural concern about judge and jury being in the same body continues. All of the commission members are supposed to have equal authority to decide matters of facts, and will also at times be called upon to determine matters of law. And yet the Presiding Officer naturally continues to exercise heightened authority.
In criminal and military justice systems, the jury is made up of one’s peers and they are the finders of fact. The judge is the finder of law – what “good cause” means in the law; whether we should follow international law or U.S. criminal law. The judge figures out what concepts such as “reasonable doubt” mean and then defines them. The reason he does that is because he knows the law and he knows how to interpret law.
In this case, the military commission members – with the exception of the Presiding Officer – have no legal background, yet will be asked to appraise and to some degree interpret the law.
Here’s an example of a typical interchange: A defense counsel will ask one of the commission members: What do you understand due process to mean?
If you ask this question of a lawyer, you’ll get a certain answer. They’ll say due process is what you get under the 5th Amendment and other provisions of the Constitution – the right to counsel, the right to confront witnesses, the right to see adverse evidence, the protection against self incrimination, the right to an impartial jury of your peers, etc.
When asked today by the defense counsel what due process was, one member said: “Justice.”
These men are trying their best, but they have no idea what due process means as a legal concept and a legal right. Their understanding is generalized. And yet, we have two centuries that define due process – by binding authority, by decisions of the U.S. Supreme Court, by statute and by treaties. The panel effectively will be able to draw on none of this.
The Presiding Officer compounded the imbalance in the commission members’ knowledge by over-reaching repeatedly. Throughout the day, he rephrased the defense counsel’s questions – as a way, it seemed, to explain them. But his re-phrasings were leading, and at times they changed the meaning of the question or were conclusive. For instance, a defense counsel asked: "Is it important to a fair trial that the defendant be aware that his action was a crime when he committed it?"
One of the members answered, in effect, that ignorance of the law was no excuse.
The Presiding Officer then said something to the effect of: “Don’t all members agree that it’s not fair to hold someone accountable for a crime he did not know was a crime.” Such rephrasing prevents the defense counsel from ascertaining the real thinking and understanding of the other commission members.
Camaraderie
Just a note about how we all are getting on. Everyone involved in these matters
is tired – make that exhausted. But there is a great deal of trust-building
going on – between and among counsels, and among the NGO observers and
the military. We have a great deal of rush, rush, rush and then wait. During
our downtime, the participants have a chance to find out a bit about each other.
There has been connecting across divides of backgrounds and experience and that
has been really positive.
What has struck me most about it is that everyone here is struggling to do his and her best – and there is this feeling, this strong pull among us all toward the tradition of American law where the process is fair. Despite what we have been seeing in this courtroom, this at least is reassuring.
Day Two: Good People, Flawed System
Tuesday, August 24
Today was the first day of actual proceedings, and it began with another new
rule. The other independent observers and I were handed an order from the Presiding
Officer just minutes before proceedings began today, instructing us what would
happen if classified or “protected” information was accidentally
revealed in open court. Among other things, the order required us to turn over
any notes we had taken so they could be reviewed and redacted if they contained
such information. As it turned out, there was no occasion for the rule to be
used today.
Defense lawyers spent the bulk of the day questioning members of the commission about whether or not they would be able to render an impartial verdict in the case of Salim Ahmed Hamdan. Mr. Hamdan, a Yemeni, has admitted that he was a driver for Osama bin Laden in Afghanistan, but has denied the military prosecutor’s charges that he conspired with al Qaeda to commit terrorist acts.
The members of the commission — the jury — are military professionals who have been selected by the Appointing Authority to hear and decide the cases of four suspected terrorists, all picked up in Afghanistan. (The Appointing Authority is Retired Major General John D. Altenburg, Jr., former Army Assistant Judge Advocate General. Altenburg was selected by Secretary of Defense Donald Rumsfeld.)
The Presiding Officer, Colonel Peter E. Brownback III, is a retired Army judge
and the only member of the commission with legal training. He will act as both
judge and jury member, managing the proceedings and, generally, ruling on motions,
but also deliberating and voting with the other members of the panel.
Adding to the merging of roles, the Presiding Officer may, in his discretion,
submit certain motions for decision by the panel. And, very important motions — ones
that could decide the case — are immediately sent to the Appointing Authority.
From my vantage point (literally the last row of the courtroom with the four other human rights observers), this process looked a great deal like voir dire — the pre-trial jury selection process where defense and prosecution lawyers question potential members of a jury about their experiences, qualifications and biases.
In this case, however, the questioning was not of a jury of peers, but a panel of military officers selected by the same Appointing Authority who had referred the charges for prosecution. And the Appointing Authority’s supervisors (the President and Defense Secretary) have already and often described the Guantanamo detainees as unlawful combatants and terrorists.
The voir dire provided the day’s first illustration of the commission’s structural flaws; it was a reminder that the process is part of a new, parallel legal system, one that is largely being made up from scratch as we go along.
And the voir dire informed my overarching impression of the day, which is this: It appears to me that all involved here — the lawyers on both sides, the Presiding Officer, the “judge” and “jury” (the members of the commission panel) — seem to be good, decent people, people who are trying to do the right thing. But they are stuck in an impossibly bad system. They are trying to do the right thing when there is no possible right thing to do. The rules as they’ve been created and as they are being implemented cannot possibly give these defendants a fair trial.
I say this and yet much of what I saw today was admirable. Lt. Cmdr. Charles Swift, Mr. Hamdan’s military lawyer, spent much of the day questioning the members of the commission and the Presiding Officer about their ability to render an impartial verdict. Lt. Cmdr. Swift asked the commission members questions like: “Are you angry about September 11?” And the Commission members were honest. One said, “Yes I am angry.” Another spoke of how he went to the funeral of a friend who died in the World Trade Center bombing. I was impressed by the forthrightness of the answers, particularly the panelists’ ability to identify their strong and serious emotions surrounding what happened on 9/11.
When the defense counsel asked the Presiding Officer, Col. Brownback, whether
he could have an open mind about the legality of the proceedings — about
whether President Bush actually had the authority to establish these military
commissions — Col. Brownback said, “Yes.” Lt. Cmdr. Swift pressed
him: “Did you think these commissions were lawful when you were appointed?”
The Presiding Officer paused for a long time and thought, visibly. He put his
chin in his hand and you could see him thinking. His response was fascinating.
He said (and I’m paraphrasing): It is one thing if you receive an order
you know to be unlawful. (He was referring to the military duty not to follow
orders you know to be unlawful.) And it’s another thing, he said, not to
be sure and to have questions and then to pursue those questions.
It was a very powerful and positive response. He took the legality of the commissions seriously and saw it as a duty of counsel on both sides to educate the commission on the law.
Those were the positive signs. There were also a series of negative ones.
Resources. The imbalance of resources between prosecution and defense was more
in evidence today. There are 13 lawyers in the prosecution office, while the
defense is begging for help. The military commission leaders addressed the prosecution’s
resources first and they haven’t dealt with the defense side yet. That’s
clearly not fair. Right now there isn’t a level playing field.
Flaws in the commission structure. The effect of the commission’s structural flaws also became visible today. The Presiding Officer is a lawyer, but the five commission members are not. In a criminal court or a court martial, the jury listens to the facts: Did this happen? Were you in this place on this day? They listen and they credit one side or the other. The judge always decides question of law. But in this system, the commission members will also need to decide matters of law and they have no background to do so. So, for instance, during voir dire, counsel was trying to ask “Do you understand that you cannot pass a law criminalizing conduct that was not criminal when it was committed?” This is the basic idea of the near-universal prohibition of ex post facto criminal laws, but it needed to be explained in detail to the commission. There was a prolonged exchange until the commission member was able to understand what the defense counsel was asking him.
This situation naturally gives the Presiding
Officer inordinate power.
Another troubling feature that became evident today was the question of whether
panel members could be impartial. A major part of the voir dire process is to
make sure that you disqualify those who are unable to rule impartially.
One of the commission panel members was in charge of the logistics of getting
detainees from Afghanistan to Guantanamo. That means the man who helped bring
these individuals to Guantanamo could now be deciding their fate. He said he
could be impartial — and perhaps he could. But it certainly does not give
the appearance of justice. Another panelist was a senior intelligence officer
in Afghanistan when the defendants were captured. The experiences of these panelists
are just too close for comfort – and to close to avoid the appearance of
partiality that can undermine the commission’s credibility in the eyes
of the world.
The most dramatic moment of the day was the appearance of Mr. Hamdan himself, even though he came in with no fanfare at all. That was part of the drama. He came in wearing a white robe and a western-style men’s blazer. He was accompanied by two MPs. He had a scarf over his head. He wasn’t in shackles or chains, which was positive. It would have been disastrous if he had been; it would have been very difficult to overcome the appearance of guilt in front of the commission member jury that will decide his fate.
As he entered, he removed the scarf and patted down his hair, which was very short. He sat down at the counsel’s table. He came in looking a little uncertain, but as soon as he saw his lawyer, Lt. Cmdr. Swift, he burst into a huge beaming smile.
I couldn’t help thinking when I looked at him that the courtroom we were sitting in was built, basically, for him, for this moment. And of course, it wasn’t only the courtroom that was built — an entire, alternative system of law was built, from scratch. It was hard to reconcile those ideas when looking at this slight, frail man.
In the end, none of the facts of Mr. Hamdan’s case were discussed today; the day was entirely devoted to whether or not there could be a fair hearing. The day went slowly, mainly because of the translation, which is still a major problem.
At one point, the court switched translators and the new translator
was not very good. Lt. Cmdr. Swift had a translator with him, and after the translator
substitution, the defense’s translator told Lt. Cmdr. Swift that Mr. Hamdan
wasn’t
understanding the proceedings, and so the original translator returned.
It’s an exchange that sticks with me: the Defense Department was unable
to provide a translator who spoke Arabic well enough so the defendant could understand
the proceedings. It sticks with me because it so well represents the flaws of
what is happening here — the lack of preparation for it, the seat of the
pants nature of it, and the basic unfairness of it.
Day
One: Four Issues of Concern
I arrived in Cuba over the weekend and am staying on the leeward side of the U.S. Naval Base here with 50-some reporters and four other observers from human rights and legal groups. After more than a year of negotiations, the Defense Department agreed to let Human Rights First and a handful of other groups attend the historic proceedings. Today was a day for orientation; and we began to glean some further information about the proceedings to come.
In each of the four cases to be heard this week, there will be preliminary hearings – one a day Tuesday through Friday. Though we made specific requests to meet with the full range of players today and for the week, we were denied visits with prosecution attorneys, military commission translators and law clerks – see the statement by the observer groups on this. We were allowed, however, to meet with a number of other participants.
Based on my observations and conversations today, there are four key issues of concern – issues that will be critical in determining the fairness of these trials, both under the rules the U.S. government has established and under accepted fair trial standards. Leading up to the trials, Human Rights First has criticized the military commission rules as providing fewer safeguards than either U.S. criminal or military court proceedings. We believe that these structural flaws violate international humanitarian law, which requires that enemy prisoners subjected to trial be afforded the same procedures and rights as would members of the armed forces of the detaining country. Read our statement on how the military commissions violate fair trial standards.
From my vantage point today, there are additional issues of critical concern beyond the issues raised by the rules themselves:
1. Resources
2. Interpreters
3. Conditions of the defendants
4. Lack of legal structure
On resources.
There is a stark and critical imbalance in the resources of the prosecution and defense attorneys. The prosecutors have an entire floor and a real staff – including researchers, clerks and paralegals. The defense attorneys – all six of them – work from one office. In the office there are just four computers and a copy machine that only periodically works. They have no administrative staff. They are, to my eye, under water. It appears difficult, if not impossible, to practice law in this type of environment. The contrast with the prosecution’s resources is stark.
On interpreters.
There is a strong sense and mounting evidence that interpreters have no experience in legal proceedings, that they do not know the words, in Arabic, for key legal terms – for voir dire, prosecution, cross examination, brief and the like. It also appears that some of the interpreters originally slated to work with the defense attorneys were involved in interrogations on Guantanamo. It would be unfair and inappropriate to have these interpreters participate in the defense. The interpreters should be able to answer, to the defense lawyers’ satisfaction, some key questions about their experience in legal proceedings and their qualifications to participate in these trials. It will be important for Arabic press to ask for, and critically evaluate, the translations of court documents to assess their quality and accuracy.
On the condition of defendants.
There is a great deal of concern about the deteriorating physical and psychological condition of at least one the defendants, particularly Salim Ahmed Hamdan, a native of Yemen. Hamdan and his lawyer have both filed declarations– as has a psychiatrist who has examined Hamdan – about his seriously weakened condition. The psychiatrist’s sworn declaration affirmed that the conditions of Hamdan’s detention “place him at significant risk for future psychiatric deterioration”; “make [him] particularly susceptible to mental coercion and false confession”; and may significantly impair “his ability to assess his legal situation and assist defense counsel.” Hamdan has been in solitary confinement since he was assigned a lawyer eight months ago. Hamdan’s lawyer says his client has lost 50 pounds since being placed in solitary.
In general, the techniques authorized for use at Guantanamo Bay did include
at one time forced nudity, stress positions, isolation up to 30 days, forced
grooming, and inducing stress by the use of dogs. The notion that coercive interrogation
techniques might have induced false confessions from detainees at Guantanamo
Bay is not hypothetical. As has been well-documented, the Tipton Three — the
Britons recently released from Guantanamo — were coerced into making confessions
later disproved by British Intelligence. The conditions of the detainees and
the questionable reliability of any of their statements (compounded by questions
about the accuracy of Arabic translation) are particularly problematic here because
the military commissions do not require that a defendant be mentally competent
to stand trial and do not provide evidentiary standards that would preclude the
admission of coerced information.
On lack of legal structures.
There is a sense here that the U.S. military leaders overseeing these trials
are making much up as they go. In the preceding weeks and months, it’s
been a new rule every time we turn around. The law has been a moving target.
For instance, in an ordinary trial, there would be preemptory challenges if one
side felt the jury was biased. Here there is a “good cause” standard – that’s
what’s written in the rules. The laws of the land right now are the “commission
rules” – that’s what the Presiding Officer keeps talking about
and referring to – yet these rules are being made up anew each day. This
confounds the very notion of the “rule of law.” Here, the Presiding
Officer writes a memoranda and that becomes the law. And yet, the memos and documents
to date do not answer basic questions – questions for instance about what
evidence could be introduced – really basic practical questions. Someone
will ask, “May I have access to this piece of evidence?” and will
be told by the Presiding Officer, “Well, I don’t know.” They
are still constructing the system, and yet the stakes are so high: these defendants
face being sentenced to life in detention with no opportunity for an independent
appeal.
—Last Updated 8/30/04