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August 23, 2004

Four Issues of Concern

Day One: 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.