November 03, 2004
Heated Debate Before Commissions
Some of the most heated debate before the commissions occurred on the afternoon of November 2, when the two sides addressed Hicks’ motion to dismiss the charges against him on the grounds that the military commission system violates constitutional requirements to provide all persons equal protection of the law. The thrust of the motion was that the Constitution doesn’t distinguish between citizens and non-citizens when the Government seeks to punish individuals under the criminal laws. While there are many areas of the law in which citizens have more rights than non-citizens – the right to vote, for example – non-citizens facing U.S. criminal trial have long had the same due process protections as citizens. Civilian Defense Counsel Josh Dratel argued that the President’s November 13, 2001 Military Order establishing the military commissions was fundamentally flawed because it only authorized military commission trials for non-citizens. Since several of the government’s most important authorities in support of military commissions were cases involving citizen defendants (one of the saboteurs in the 1942 Nazi saboteur case, Ex Parte Quirin, for example, was a U.S. citizen), the prosecution could hardly point to historical experience to justify excluding citizen terrorists from the current vintage of military commissions. In contrast, Prosecutor Lt. Col. Entwecher described the military commission system as providing the state-of-the-art in fair trials. Responding to the defense lawyers’ call for application of international and U.S. constitutional standards, Entwecher asserted that “‘Commission Law’ gives equal or greater protection than any of the defense’s other sources.” For example, when Mr. Dratel raised concerns about President Bush’s public statements before trial suggesting that Guantanamo defendants were guilty, Entwecher responded that Commission defendants are presumed innocent until proven guilty, just like American defendants in U.S. court. In any case, the President’s statements weren’t about Mr. Hicks specifically – and in any case, defense counsel can ask the panel members if they were improperly influenced by the President’s words. Entwecher also highlighted what he saw as Hicks’ advantage of greater time with his lawyer than most criminal defendants have for trial preparation, And while Mr. Hicks may not have a right to see all the evidence against him, every government has some legitimate interests in keeping some classified information secret. Civilian defense counsel Dratel appeared genuinely shocked that the prosecution could seriously make these claims. “The notion that ‘Commission Law’ provides the same or greater rights than any other system is astounding, an affront to the U.S. Constitution,” Dratel argued. Dratel honed in on evidentiary issues. He insisted the Government didn’t actually know how Hicks had been captured (since he had been turned over to the United States by Northern Alliance forces). He also pointed out that the Government would be permitted to make its case on hearsay evidence that would be excluded from a civilian trial. On presumption of innocence he was particularly passionate. “We lost panel members because of the presumption of innocence. Now we suffer because they have poisoned the well!” Dratel was referring to the Appointing Authority’s decision several weeks ago to remove two of the voting commission members from the panel given an appearance of bias against the defendants. Dratel contended that the removal of these members without replacing them with new members now made it even easier to convict Hicks: the prosecution now needed to persuade only 2 out of 3 commission members of Hicks’ guilt, instead of the 4 members the prosecution would have had to persuade if the commission panel included a full compliment of members. Questions of Legal Expertise A repeated important theme of the defense throughout the hearings was the complexity of the law that the commission would be working with, and the risk of prejudice resulting from the fact that a three-person panel with only one trained lawyer will be determining issues not just of fact, but of law. While military officers would, as the panel members explained, certainly have received training in broad principles of international humanitarian law – the law of war – the commission will be asked to resolve difficult and controversial questions at the cutting edge of heated debate among the world’s experts in the field: Does the administration’s “Global War on Terrorism” represent an “armed conflict” within the meaning of the law of war? How can one determine when such a conflict has ended….or when it began? Are there individuals, or places, or activities, that fall outside the scope of international and domestic law? What rights do accused “unlawful combatants” have in and outside a court? To assist commission members, the defense lawyers had earlier submitted motions to the military commission to permit testimony as expert witnesses by six internationally reputed experts on humanitarian law, including such individuals as Antonio Cassese, former judge at the International Criminal Tribunal for Former Yugoslavia, and Michael Schmitt, one of the most distinguished of the Defense Department’s own law-of-war experts. The prosecution opposed the experts’ participation, arguing they would turn the proceedings into an unnecessary “battle of law experts.” Indeed, the prosecution asked the court for a blanket exclusion of all expert “attorney and commentator testimony.” While the panel declined to bar testimony from individuals yet to be proposed, it denied the defense leave to call the six experts requested. Commission member Col. Bogdan said that if the commission were going to choose to hear any experts, “I only ask that we – not the defense or the prosecution – make the requests. I need information from experts, but I need to know what I don’t know” before deciding which experts should be heard. For me, one moment during the November 2 session crystallized the anxieties the defense had been expressing. Military Defense Counsel Major Dan Mori was making the argument that if Hicks was not deemed to be a “prisoner of war” (with the rights granted those in that status), then he should have been treated as a civilian, under the Fourth Geneva Convention. The point is difficult and, as Mori conceded, somewhat counter-intuitive; but just because someone is a “civilian” under the Geneva Conventions doesn’t necessarily mean he’s innocent of wrong-doing. Even someone who engages directly in an armed conflict – and who is not otherwise entitled to special prisoner-of-war status – is a “civilian” within the meaning of the law. That person can of course be prosecuted for engaging in combat, but he is still entitled to the basic procedural and humanitarian protections afforded all civilians caught up in armed conflict. In Mr. Hicks’ case, those protections would have prohibited his transfer from Afghanistan to Guantanamo Bay. Col. Brownback, the Presiding Officer, grilled Mori about which Convention should apply to Hicks and, in a somewhat obscure line of questioning, seemed to be trying to get Mori to concede that it was the Third Convention (regarding Prisoners of War) that should apply to Hicks. While Brownback’s point was seemingly wrong on the law, he seemed to be losing his patience in his exchange with Mori, noting at one point: “I’m looking at Third Convention, article 3, Sunshine.” Brownback’s patronizing use of the nickname “sunshine” for Major Mori seemed to evince a surprising disrespect for counsel (indeed, this was the second time that day that he had used the term in addressing Mori). It also seemed a perfect example of the personal and conceptual barrier the defense feared the Presiding Officer could set up – undermining the force of defense arguments in a way fully visible to the non-lawyers on the panel. In a post-script to this story, NGO representatives had the opportunity to talk with the Presiding Officer’s “Assistant,” a former military judge named Keith Hodges. The Assistant role had been controversial earlier in the proceedings because of indications that the Assistant would be “providing advice” to the Presiding Officer or the other commission members on questions related to their “adjudicative functions.” In response to defense objections, the commission agreed to cut back the Assistant’s role to what Hodges described as, in effect, an officer manager, handling supplies and logistics for the panel. Hodges emphasized to us that he gave no legal advice to the Presiding Officer or the commission. He then went on to give his views on the question of lawyers versus non-lawyers on the commission. He stressed the independence of the non-lawyer commission members. “Who do you want to be in a courtroom that won’t be intimidated by a colonel [i.e., Brownback]? Other colonels!” Next Steps Though many of the trial observers had hoped that the military commission might decide at least some of the thorny motions pending before it, the court left almost all the big questions open. The last day of the week’s proceedings consisted of a short housekeeping session in which the Presiding Officer stated that the panel would be reserving judgment on a battery of motions challenging the legitimacy of the tribunal and the nature of the offenses it is authorized to try. He announced that they had granted Hicks’ motion for postponement of his trial date, which is now set for March 15, 2005. He also reported that the parties had negotiated an agreement on discovery – the information the defense team would seek to obtain from the prosecution. Many of the motions filed by the Hicks defense attacking the foundations of the military commission system are mirrored by similar motions filed by military Defense Counsel Lt. Commander Charlie Swift on behalf of defendant Salim Ahmed Hamdan, a Yemeni who worked as a driver for Osama bin Laden in Afghanistan and is charged with conspiracy to commit war crimes. Hamdan’s motions will be argued beginning November 8, and it now appears that the military commission has decided to hold off deciding both sets of motions until after the Hamdan arguments have concluded. My colleague Avi Cover will be covering the second week’s proceedings.