January 10, 2006 – Preview

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is observing the military commission proceedings at the U.S. Navy Base at Guantanamo Bay, Cuba.

Priti Patel is a lawyer with Human Rights First’s U.S. Law and Security Program.

Avi Cover is a Senior Associate of Human Rights First U.S. Law and Security Program.

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Military Commission Hearing Preview

January 10, 2006

Twenty-four hours under my belt and unfortunately the only thing I have accomplished is getting a bit of sunburn. On Monday I and the other human rights and legal group representatives were marooned on the leeward side of the island where there is little but the airport, our bachelor quarters, a strictly off-limits migrant operations area and a decent beach alcove.

I should mention that just prior to our arrival down here the government thankfully realized that Tuesday is one of the most important Muslim holidays of the year – Eid ul Adha, which marks the end of the Hajj – and postponed Ali Hamza Ahmed Sulayman al Bahlul’s hearing until Wednesday. Hearings for both detainees al Bahlul and Omar Khadr are now planned for that day.

The time did afford me the opportunity to learn a bit more about the two detainees and I also got a better sense from military commission defense lawyers on the flight down here on what some of the issues will likely be on Wednesday in the courtroom.

Normally a pretrial hearing is a fairly mundane and not all that interesting proceeding to watch. But given the novelty of these commissions, with the rules hardly tested, if at all, it’s hard to predict what may occur.

The government alleges that Yemeni citizen al Bahlul is a member of al Qaeda who worked as a media specialist for the terrorist group from 1999 to 2001, creating recruitment and instructional videos, including one glorifying the bombing of the USS Cole. Al Bahlul has been charged with conspiracy to commit acts triable by a military commission, namely “attacking civilians; attacking civilian objects; murder by an unprivileged belligerent; destruction of property by an unprivileged belligerent; and terrorism.” But the President’s military order creating the tribunals only authorizes prosecution of war crimes. Whether conspiracy is recognized as a war crime under the laws of war, however, is a complicated one and is not settled.

Al Bahlul already had one rather eventful go round of preliminary hearings back in August of 2004, when inaccurate language translation plagued the day and he expressed the desire to represent himself and made an unclear or unclearly translated reference to his affiliation with al Qaeda and September 11. Al Bahlul apparently still wishes not to be represented by a lawyer. Army reservist Maj. Tom Fleener was recently appointed as al Bahlul’s military commission defense lawyer and is in a tricky predicament that many public defense lawyers have found themselves in when their clients decline counsel. Fleener believes it is his ethical obligation to fight for his client’s right to self-representation and to not go further on any other issues. Military commission rules do not allow for self-representation and the presiding officer in the case, who will decide issues of law, appears disinclined to honor al Bahlul’s request. As a second choice, al Bahlul has previously expressed preference for a Yemeni lawyer, a selection that makes perfect sense to Fleener, who told me: “If I was captured by al Qaeda I wouldn’t want an al Qaeda lawyer.” But military commission rules do not allow for non-American legal representation. These issues will almost certainly have to be confronted on Wednesday.

Canadian citizen Omar Khadr was fifteen years old when he was captured by U.S. military forces in Afghanistan in 2002. He is accused of having thrown a hand grenade that caused the death of an American soldier, Sergeant First Class Christopher Speer of the U.S. Army. Khadr is officially charged with murder by an unprivileged belligerent; attempted murder by an unprivileged belligerent; aiding the enemy; and conspiracy. The charge sheet provides a background describing the immersion of Khadr in the al Qaeda world as a nine- or ten-year-old in Afghanistan and Pakistan.

Trying a person for alleged war crimes committed as a child is unprecedented and disturbing. Khadr’s civilian lawyers, Richard Wilson and Muneer Ahmad, say that “there is no record of trial of a juvenile under the age of 18 for war crimes in any tribunal” from Nuremberg until the international tribunals of recent time in Yugoslavia, Rwanda, Sierra Leone or East Timor. The lawyers also point out in a letter to the United Nations Special Representative for Children and Armed Conflict that the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (to which the U.S. is a party) requires that states seek to provide for captured juveniles’ physical and psychological recovery and social reintegration. It is galling that the United States has instead chosen to charge this now young man as a war criminal.

Worse than the fact that Khadr has been charged, however, are the circumstances and conditions of his confinement and interrogation. From the time Khadr arrived in Guantanamo until this summer, he was held in solitary confinement – 40 months. The details of his interrogations, which are alleged in a brief his civilian lawyers filed last year, are chilling: Khadr was held in contorted stress positions, left to urinate and defecate on himself; military police poured pine oil solvent on him and used him a “human mop” to clean the floor; and he was repeatedly threatened with rape and rendition to countries where he would be tortured, including Israel, Egypt, Syrian and Jordan; and subjected to extremely cold temperatures. While held in Afghanistan, dogs were brought in to induce fear during interrogation and he was subjected to stress positions that included hanging him by his hands from above the door frame.

The danger that evidence obtained through this torture and other abusive treatment of Khadr, and of other detainees, against these two detainees is not speculative, but is very real. The military commission order provides only that evidence may be obtained if it of “probative value to a reasonable person.” The Uniform Code of Military Justice, which governs courts-martial, however, is a lot stronger, providing, “No statement obtained . . . through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.” It’s this standard that – at a minimum – the military commissions should be following.

Finally, a word about the military commission defense lawyers, who have really distinguished themselves and should make America proud in their zealous representation of their clients. No one imagined that the military appointed lawyers would fight so vigorously, all the way to the Supreme Court in fact. It’s tough going for them. Their clients have been accused of serious crimes. But they continue to advocate in the great American tradition of John Adams, who also represented enemies of the United States. But apparently there still remains a great discrepancy – about a 3 to 1 ratio (slight improvement from last year) – between lawyers and support staff for the military commission prosecution and the defense teams. While prosecutions are often at a resource advantage in all legal systems, the difference is all the more distressing where the process is so highly stacked against the defendants.

More tomorrow…