August 24, 2004
Good People, Flawed System
Day Two: 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.