August 27, 2004
The End of the Beginning
Day Five 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.