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March 01, 2006

March 1, 2006 - Flaws in the Process and Dracula?

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.

Priti Patel – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.

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March 1 , 2006

Flaws in the Process and Dracula?

I have been at Guantanamo now for over 24 hours and the one thing I have learned is that, as with the military commission rules, everything is constantly changing. So first of all, the hearing for Ghassan Abdullah al Sharbi which was originally scheduled to take place on Thursday, March 2 has been postponed. From what I have been told there continues to be some access to client issues that need to be resolved. Fielding that curveball and facing an otherwise empty day, we (me along with the three other NGO representatives) decided it would be a good opportunity to meet with the military defense lawyers for the military commissions to get a sense of what issues they expect will come up in the hearings and what concerns they have regarding the legitimacy of the commissions.

The biggest criticism of the military commissions process I heard from Cpt. William Kuebler, who is representing al Sharbi and Col. Dwight Sullivan, Chief Military Defense Counsel for the Commissions, was that almost all of the information the military defense lawyers received regarding the guilt or innocence of their clients from the prosecution was information they were not allowed to share with their clients because it was either classified, labeled “law enforcement sensitive” or marked for official use only. To be clear, information that is labeled law enforcement sensitive or for official use only does not rise to the level of classified material. But according to the current military commission orders, military defense lawyers are not allowed to share any information “concerning intelligence and law enforcement sources, methods, or activities…or…concerning other national security interests” with their clients or civilian lawyers. This would not be the case if the commissions complied with article 105 of the Third Geneva Convention or if the case was in a U.S. federal court. What this means is that military defense lawyers are in the hopeless situation of trying to confront the prosecution’s evidence against their client without actually being able to talk to their client about it. For an interesting exchange of what this rule could lead to check out pages 47 and 48 of Washington, D.C. Federal District Judge Joyce Hens Green’s ruling where she quotes from a combatant status review tribunal hearing where the detainee can’t rebut the allegations against him since he has no idea where they came from. And perhaps even more surprising, the military defense lawyers are not allowed to share that information with their co-lawyers or even with Col. Sullivan who is the chief military defense counsel.

It also exacerbates an already difficult relationship military defense counsel have with getting their clients to trust them. As the case of Ali Hamza Ahmed Sulayman al Bahlul and other Guantanamo detainees have shown so far, some of the detainees have encountered interrogators pretending to be their lawyers and therefore distrust people who claim to be their attorneys. Or as in the case of al Bahlul, someone who believes that the United States is his enemy is sure to distrust a U.S. military attorney provided to him. These types of limitations on access to information not only violate basic U.S. laws and laws of war, but also inhibit the ability of military defense lawyers to adequately represent their clients.

Another major criticism of the military commissions voiced by the defense counsel was that in contrast to proceedings in courts-martial and U.S. federal court, the defense is being denied access to documents during discovery such as statements made by the accused that the prosecution possesses. According to defense counsel, this would mean they would not have access to statements made by the accused that are in the prosecution’s possession, unless the information is exculpatory or is information the prosecution plans to present at trial. This issue is not likely to come up in these pre-trial hearings, but will definitely be raised should the military commissions continue to the merits phase.

On a positive note, Col. Sullivan noted that despite an inequity in resources between the defense and prosecution sides, he believed the Appointing Authority was trying his best to remedy that situation. Despite the criticisms the military defense lawyers informed us of today, Cpt. Wade Faulkner, who is representing Sufiyan Barhoumi also told us that he was planning to work within the confines of the rules he believes are inherently flawed to change them and to make this a better, and in the end, full and fair process. The work the military defense lawyers have done to date has been extraordinary and is a testament to their dedication to the rule of law and zealous representation of their clients.

Meeting with the military defense lawyers also gave me a chance to learn a bit more about at least one of the detainees whose hearing is coming up tomorrow. Cpt. Faulkner, who has had a chance to meet with Barhoumi less than five times since he was detailed to represent him in late November, told us that Barhoumi is approximately 33 years old and an Algerian citizen. He maintains his innocent. He speaks some English, but is fluent in Arabic and was in relatively good health when Cpt. Faulkner last saw him. Hearing this little information about Barhoumi made me realize how little we know about those individuals detained here at Guantanamo after four years.

The other thing we were able to do today was sit in on a press briefings with Air Force Col. Moe Davis, the chief prosecutor for the military commissions. Col. Davis suggested that detainees held at Guantanamo were like Dracula, who did not want to be dragged into the light. He went on to explain that to detainees sunlight was equivalent to facing the facts against them and that is why they were resisting entering the military commission room. But the problem with this reasoning (apart from the troubling fact that detainees are being likened to fictional vampires) is that the detainees will actually not get a chance to confront the facts against them. As the defense counsel pointed out, the detainees do not get a chance to even know all of the evidence against them since their lawyers are barred from telling them.

Also, Col. Davis, a little contrary to what he said last time, informed us that in his opinion none of the cases before the military commissions involved evidence obtained under torture and it therefore would not be an issue for the commissions. Of course the government has taken a narrow view of what it characterizes as torture and other cruel, inhuman or degrading treatment, excluding conduct such as forced nudity, sexual humiliation and sleep deprivation. In addition, as we have argued in a brief to the Supreme Court, it isn’t just a question of whether these particular cases will involve information obtained under torture; the problem is that the military commissions rules as they are currently written would allow the possibility of evidence obtained under torture into the proceedings and that in and of itself would violate U.S. legal jurisprudence reaching centuries back.

And sadly, I just learned as I am writing this that Barhoumi’s hearing, scheduled for tomorrow, was postponed to a later date because he just learned that his father had died. Unfortunately, I don’t know any more information than that at this time.

Stay tuned….tomorrow I will now be observing the pre-trial hearing for al Bahlul, and I am told we will get a chance to talk to the prosecutors for the military commissions...