Arbitrary Justice

Procedural Concerns in the Conduct of Trials

Based on interviews with key actors in the trial proceedings, our review of two dossiers, and observations of two trials, Human Rights First has identified procedural flaws that significantly undermine the fairness of the trials taking place in Block D, Pul-i-Charkhi.

Afghanistan became a party to the International Covenant of Civil and Political Rights (ICCPR) in 1983, and all successor governments remain bound by it. Article 14 of the ICCPR provides that any person charged with a criminal offense is entitled to a "fair and public hearing by a competent, independent and impartial tribunal established by law."[68] "A fair trial" under the ICCPR requires that a person being tried for a criminal offense must be guaranteed, at a minimum, the following rights:

• To be presumed innocent until proved guilty according to the law;
• To be informed of the charges against oneself in detail and promptly, in a language one understands;
• To have adequate time and facilities for the preparation of a defense and communication with counsel of one's own choosing;
• To be tried without undue delay; to be tried in one's own presence, and to defend oneself in person or through legal counsel of one's own choosing;
• To examine witnesses against oneself and be able to obtain the attendance and examination of witnesses on one's behalf, under the same conditions as the prosecution;
• Not to be compelled to confess guilt or incriminate oneself; and
• To be able to appeal to a higher tribunal against conviction and sentence.[69]

These fundamental fair trial principles are applicable irrespective of whether the legal system of the country conforms to a common law (such as in the United States and England) or civil law system (such as in Germany and Afghanistan). The procedural flaws identified by Human Rights First of Block D trials undermine several fair trial guarantees, including: the right to adequate time and facilities to prepare a defense; the right not to incriminate oneself; the right to be informed of charges in a language one can understand; and the right to examine witnesses against the accused.

A defendant's right to examine the evidence and confront the witnesses is a fundamental fair trial guarantee. This is essential to test the credibility of the witnesses and their evidence. This right requires that an accused should be given "adequate and proper opportunity to challenge and question a witness against him, either at the time the witness makes the statement or at some later stage in the proceedings."[70] A conviction thus cannot be substantially based on the statements of witnesses whom the defense counsel is unable to cross-examine.

In a civil law system, witness testimony can be taken either during the investigation phase or at trial. During the investigation phase, the Afghan criminal procedure code provides for defense counsel and a defendant to be present during witness testimony, searches, confrontations, and line-up procedures, and this right can only be waived when there is urgent need to conduct the operations or concern for loss of evidence.[71] Afghan law mandates that "records of the testimonies of the witnesses . . . collected during the investigative phase, can have the value of evidence as basis for the decision only if . . . the accused and/or his defense counsel were present during the operations and were in a position to raise questions and make objections. Otherwise the related deeds have the sole value of clues."[72]

In practice, defense counsel is not present when his client is interrogated by the prosecution, nor when the local NDS office attempts to collect evidence about a suspect.

Lawyers are appointed to the case only after the investigation is concluded.

When asked whether defense counsel can interview U.S. soldiers involved in the arrest, a defense counsel replied, "With Americans it is very difficult. We don't know who the interrogator or soldier is. We do not meet the Americans. This is not allowed."[73] Even the Afghan prosecutors are in no better position than defense counsel when it comes to trying to get real evidence from U.S. authorities. As one national security prosecutor admitted, "we can't question U.S. soldiers or interrogators for Bagram or Guantánamo detainees" because so much time has elapsed since the date of capture.[74] The evidence "is all packaged and handed to us on a plate," the prosecutor added.[75]

Defense counsel are not only denied the opportunity to challenge evidence in the investigation phase, but because no prosecution witnesses testify in court, defendants are completely deprived of their rights to confront evidence. This situation is aggravated by the fact that the evidence in the dossier consists of second- and third-hand statements and summary allegations, with no names of witnesses who can be interviewed or brought to court and cross-examined.

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Moreover, defense counsel is not adequately able to prepare a defense when the evidence in the dossier consists of second- and third-hand statements and summary allegations with no names of witnesses who can be brought to court and cross-examined.

Guantánamo and Bagram detainees have reported being subjected to harsh treatment during confinement. As widely documented in human rights[77] and press reports,[78] including U.S. government documents,[79] detainees have been subjected to beatings; stress positions; sexual abuse and humiliation; sensory deprivation; sleep, food and water deprivation; exposure to cold temperature; isolation; dousing with cold water; and blaring of loud music.

A Block D defendant, who was sentenced to five years – initially a detainee in Bagram before being sent to Guantánamo and returned in 2007 to Block D – told Human Rights First about the conditions of confinement in Bagram in 2002:

I was in an isolation cell for two months. I could not talk to anyone. Loud English music was played all the time. It was bothersome. There were no windows. I had no water to do ablution for prayers. I did not know whether it was night or day. The light was on all the time.[80]

A Guantánamo returnee transferred to Block D, alleged in his Combatant Status Review Tribunal hearing in Guantánamo that, while in Bagram, he was physically abused, forced to stand for ten days, and not allowed to sit or sleep while his hands were tied.[81]

And as recently as 2007, the ICRC, as reported in the New York Times, complained that dozens of Bagram detainees were still being held incommunicado in isolation cells and not notified to the ICRC for as long as several months and some were subjected to cruel treatment during interrogations. [82]

This history is relevant to the Block D trials because it appears that detainee statements extracted by U.S. interrogators in coercive detention conditions – and thus inherently unreliable – may be infecting the Block D trials.[83] A defense lawyer expressed concern that a detainee's confession before U.S. or Afghan forces at the time of capture could be coerced. He stated:

Prosecutors offer evidence to the trial of confessions which were obtained by the U.S., or ANA . . . at their initial capture, but were later retracted by the defendant. Sometimes these written or verbal confessions were obtained through different kinds of coercion, such as making the detainee stand in the rain or putting them in harsh prison conditions.[84]

Another defense lawyer expressed similar concerns regarding confessions, noting that the judges do not appear to take such challenges seriously:

My clients have told me that they have been beaten at Bagram or at time of the arrest. When we mention this to the judge, the judge says that Bagram and Guantánamo detainees are exceptional cases because they are arrested by Coalition Forces and therefore they [Afghans] can't pay attention to issues of ill-treatment.[85]

But the Afghan Constitution prohibits introduction into evidence of statements obtained "by means of compulsion" and recognizes a confession as a voluntary admission only if taken before a judge.[86] The Afghan criminal procedure code similarly prohibits a suspect or accused from "undergo[ing] intimidations or any form of physical or psychological pressure."^[87] And international law likewise prohibits the use of evidence procured by torture, or by cruel, inhuman or degrading treatment, in all legal proceedings.^[88]

When Block D trials commenced in October 2007, ten individuals were tried and convicted without defense counsel. According to a former Block D detainee who was tried, convicted, and sentenced without counsel, detainees complained to the ICRC about the lack of counsel.[89] A U.S. embassy official told Human Rights First that when the United States learned that some defendants were tried without counsel, they spoke with Afghan authorities to ensure legal aid is provided to the defendants.[90] Now six Afghan lawyers are representing more than 160 defendants.

Defense lawyers are allowed to meet with their clients privately, and there are no restrictions on the number of visits.[91] One lawyer noted that his clients at first were hesitant and did not know what role the lawyer would play. "Some detainees are cautious and not sure who we are and whether we can be trusted. I guess this is because they have been detained without a lawyer for many years in Bagram," said a defense lawyer.[92]

Defense counsel told Human Rights First that they usually are not allowed to review the court dossier until five days before trial. As noted above, except in exigent circumstances Afghan law requires defense counsel to be allowed to be present while the investigating prosecutor is taking witness testimony and gathering the evidence, so that he can become knowledgeable of the evidence to be presented in court. But Block D prosecutions are being conducted in disregard of these requirements. Defense counsel is appointed when a detainee has been charged and the dossier has been transferred to the court. A defense lawyer told Human Rights First, "I have not been present during the prosecutor's interrogation because my clients had representation [only] after the prosecutor [had already] asked [all] their questions."[93] Thus the timing of their appointment alone effectively impedes defense counsel in these proceedings from adequately preparing for trial.

Notably, in early February 2008 when Human Rights First met with lawyers representing Block D defendants we learned that they were unaware of CSRT and ARB proceedings in Guantánamo.

Dari and Pushto are the official languages of Afghanistan. Official business in Kabul, however, including court proceedings, is conducted more frequently in Dari. The Afghan criminal procedure code does obligate the court to provide an interpreter to a defendant during trial proceedings for "explaining to him the charge and the indictment and for assisting him during the interrogations and confrontations."[94] This is consistent with international fair trial standards.[95] According to defense lawyers, defendants in Block D are predominantly Pushto speakers, and there are no interpreters during trials. In one of the trials observed by Human Rights First, as the prosecutor began reading the opening statement, the defendant jumped up from his seat and made motions to defense counsel indicating that he could not understand. The defendant spoke only Pushto and did not speak or understand Dari.

The judges also read excerpts from the dossier – again, in Dari. Defense counsel told the court that his client did not speak Dari. Several times during the trial the defendant asked defense counsel to translate what was being said. The judges did speak Pushto and questioned the defendant in Pushto, but otherwise refused to conduct the proceeding in Pushto. The defendant, charged under article 5 (destruction), was convicted and sentenced to eight years. There were no witnesses and the trial lasted 35 minutes.

Human Rights First was told by defense lawyers and a former Block D defendant that for defendants who were acquitted or sentenced to time-served, the delay before release can be from a few days to one month.

An official with the Supreme Court explained that following a verdict, the case is referred to the NDS and the attorney general's office. He, however, refused to elaborate on the details and said, "I don't know how much time the attorney general and NDS take to decide when to release someone and I don't want to talk about it."[96]

The new presidential committee established in March 2008 to look into Block D trials can also recommend release. But it appears that NDS does play a role in the release process.