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January 11, 2006

January 11, 2006 - Chatty Prosecutors and Old Camp X-Ray

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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Chatty Prosecutors and Old Camp X-Ray

January 11, 2006

On Tuesday we were able to gain a lot more insight into the thinking of members of the military commission prosecution team. In the past the prosecution had been tight-lipped with NGO representatives. But the chief prosecutor talked with us fairly candidly, expressing a desire for transparency while vigorously defending the necessity of the commissions' changes in basic evidentiary standards.

As I have mentioned in previous posts, there's real danger evidence obtained through torture could be allowed into military commission trials. The chief prosecutor, Air Force Col. Morris Davis, appeared to admit as much, telling us: "Treatment is going to be a huge issue," but Davis said he believed that the prosecution would often be able to build a case without using any information obtained by interrogation. Col. Davis stated that he agreed with Senator John McCain's comments regarding the use of cruel, inhuman or degrading treatment – "It's not about them; it's about us." So, Davis explained, the prosecution would "err on the side of being fair."

It certainly is possible that there could be other evidence used against defendants that was obtained through legal means, but by removing the clear prohibition on admission of coerced evidence, that likelihood is reduced. Military commissions cannot provide fair trials as long as coerced evidence may be admitted against defendants.

But another member of the prosecution team colorfully explained to us why terrorist suspects aren't entitled to basic legal rights: "if they wanted to be tried in a civil law system, they should have attacked France." I can't comment on the merits of the French legal system, but the United States does not have to afford detainees captured on the battlefield a civilian trial. That said, the military commission processes should be as similar to courts-martial in the U.S. military justice system as possible. Unfortunately the discrepancies are great. A military commission staffer noted at least five ways in which the military commissions differ from courts-martial: (1) exclusion of defendant from proceedings; (2) lowered standards of admissibility; (3) no Miranda or UCMJ [the military justice code] art. 831 requirement; (4) no rights to speedy trial; and (5) and the prosecution only has to hand over information in its possession, rather than in possession of the government. The military commission chief defense counsel, Marine Col. Dwight Sullivan said he thought it was ironic that as a defense lawyer he would now have to be fighting for the rules for courts-martial. As constituted, the commissions do not meet the minimal requirements of common article 3 of the Geneva Conventions requiring that prisoners be tried by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

The prosecution and defense do appear to agree on some aspects of the al Bahlul case scheduled for Wednesday. Both sides share the view that al Bahlul should have a right to represent himself. Col. Davis didn't think that denial of the right would preclude a full and fair trial, but that it would be harder for al Bahlul if he acted as his own counsel. Maj. Tom Fleener, al Bahlul's detailed military defense counsel, said he wanted the military commission rules changed to let al Bahlul represent himself. But Fleener hopes that through his efforts to secure self-representation he can convince al Bahlul to let him be his lawyer.

The Khadr case also involves issues of legal representation. Mr. Khadr is seeking a military defense lawyer different from the one currently detailed to him, Capt. John Jay Merriam, who has never acted as a defense lawyer. Issues of representation, which would be a lot more clear in an established legal system, are likely to take center stage in both cases on Wednesday.

We also had a somewhat timely visit to the old detention facility of Camp X-ray – the prison the first detainees came to on January 11, 2002, four years ago. The camp is empty, with Camp Delta, the operational detention facility that now holds about 500 detainees, a few miles away. Camp X-ray held as many as 300 prisoners before it was closed in April 2002. Of course we would have preferred a visit to Camp Delta to see current conditions of confinement – but that request was denied.

Walking through the old Camp X-ray facility, composed largely of wooden buildings and chain link fence prison cells, now overgrown with vines and weeds, I kept an eye out for banana rats and pythons — and I almost thought I was on a tour of an ancient archaeological site. We walked into a nondescript wooden hut measuring about 15 by 40 feet – the interrogation room. Empty, without any markings, it was difficult to imagine what happened there. As far as we know, the most abusive interrogation techniques were not authorized by Secretary of Defense Rumsfeld until late 2002, after Camp X-ray was closed. By April of 2003, the interrogation policy had been amended, but still included dietary manipulation, sleep adjustment, environmental manipulation and isolation.

Standing in the old interrogation room, Lt. Col. Jeremy Martin, the Joint Task Force spokesman told us that "we continue to interrogate and to receive troves of strategic intelligence that is critical to the war on terror." What is the current interrogation policy at the base, we asked. "All interrogations at Guantanamo are done consistent with the Army Field Manual," replied Martin. Any other answer would have been unacceptable. The law of the land, thanks to Senator John McCain, requires this, regardless of whether it is the military or the CIA conducting the interrogation. But is the April 16, 2003 memo still the current policy? "All interrogations at Guantanamo are done consistent with the army field manual," Martin repeated. We didn't get any more clarity on that.

As we enter the fifth year of indefinite detention of people held at Guantanamo, the United States government should provide in detail what interrogation methods it authorizes and employs at Guantanamo. When an island is chosen to house detainees based in part on the reasoning that protections against torture and other cruel, inhuman or degrading treatment do not apply to them there, it behooves such clarity. When military commission personnel admit that the abuse of detainees may encumber fair trials, we need to be unequivocally clear on how detainees are treated.