March 1, 2006 – Yes, Commissions Can Allow In Evidence Obtained Under Torture

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

Yes, Commissions Can Allow In Evidence Obtained Under Torture



So the biggest thing that happened today of course happened right at the end of the day. Maj. Jane Boomer, the legal spokesperson for the Office of Military Commissions admitted to us that currently under the military commissions rules, evidence obtained under torture could be admitted into evidence. Now, we have been raising this criticism both in previous posts and in other briefings, but I personally have not come across a Department of Defense official actually acknowledging this fact. This acknowledgement came after a discussion in the military commission proceedings between Ali Hamza Ahmed Sulayman al Bahlul’s detailed military counsel, Maj. Tom Fleener, and the Presiding Officer in the case, Col. Peter Brownback III. At the proceedings, Maj. Fleener asked Col. Brownback whether he would allow in evidence obtained under torture. Col. Brownback began by saying that both he and Maj. Fleener probably had a different definition of torture. Now there has been much discussion since September 2001 about what torture is and how the law seems to be unclear on its definition. But there is no ambiguity. The U.S. is party to the Convention Against Torture, which defines what torture is and the U.S. has also statutorily defined the act of torture in the criminal code and elsewhere. Col. Brownback then continued by saying that he personally believed that torture is not good, but though it may be likely he wouldn’t let evidence obtained under torture in, he wouldn’t rule it out either.

Well, that was just the tip of the iceberg; a lot else happened during the hearings for al Bahlul today. Let me try to recap.

This afternoon was the first time I have seen al Bahlul and I have to admit I was quite surprised. I had read the transcripts of his previous two hearings in August 2004 and January 2006 and based on those I was expecting some level of disarray in today’s proceedings. But al Bahlul came into the proceedings room in a blue button down shirt and khaki pants and asked very politely if he could address Col. Brownback. He then clearly and coherently voiced his concerns regarding his participation in the military commissions proceedings, since he previously had informed the commissions of his intent to boycott.

Most of the arguments he raised today had been raised previously. He told Col. Brownback that he came today because he would like to represent himself and if that was not possible, he wanted a Yemeni lawyer to represent him. Al Bahlul reasoned that he could not possibly trust that he would be adequately defended by an American given the attacks of 9/11. But he did clearly say that he had no relationship with 9/11. Al Bahlul and Col. Brownback went back and forth on the issue of representation for quite some time. At one point Col. Brownback suggested that al Bahlul could get an American of Yemeni descent to represent him. Al Bahlul rejected that, reasoning that his argument was based on the inability of Americans to overcome their understandable feelings about 9/11 and that had nothing to do with their ethnicity, but had to do with their nationality. He asked Col. Brownback to reconsider his prior ruling that al Bahlul could not represent himself since he should have the right to choose his own counsel.

The other very important point al Bahlul raised was that it was critical for him to trust his lawyer since under the current commission rules there could be sessions conducted in secret where he would not be allowed into the commission hearings room. In that event, he wanted to be able to trust his lawyer and he just didn’t believe he could trust an American lawyer. Indeed, the military commission rules go further than what al Bahlul stated in the proceedings. Under Military Commission Order No. 1, § 6(B)(3) a military defense lawyer “may not disclose any information presented during a closed session to individuals excluded from such proceeding.” That means that even though al Bahlul’s military defense counsel could represent him in closed proceedings, he could not inform his client of what occurred in the hearing; hence al Bahlul’s ability to trust his lawyer becomes even more important.

Col. Brownback decided against al Bahlul’s call for reconsideration of his request to represent himself telling al Bahlul that nothing he heard today made him think he should change his prior ruling. He provided no further reasoning. It is unclear to me why al Bahlul could not represent himself in this proceeding. In the United States’ prosecution of Zacarias Moussaoui the U.S. federal district court dealt with a similar situation where Moussaoui had a public defender assigned to him but wanted to represent himself and he was able to do that as long as he conducted himself properly and the public defender stayed on the case in the event Moussaoui was acting improperly. It is important to note that Moussaoui’s right to represent himself was later revoked for violating the parameters laid out by the court. There is no reason why that can’t happen in these proceedings.

It was only at this point (after he had tried again to argue for self-representation) that al Bahlul made known to Col. Brownback of his intention to boycott the proceedings. Al Bahlul remained in the commission proceedings room while Maj. Fleener conducted voir dire of Col. Brownback, which basically is a process where the presiding officer was questioned about his possible bias in judging this case. Al Bahlul kept his headphones on so he could hear the translation, but he made clear to the room that there was a “difference between hearing and listening” indicating he was hearing, but not listening.

Al Bahlul did not return to the commission proceedings room when we returned from our dinner break. He was in the military commission building, but refused to come into the proceedings room. Col. Brownback stated that he would not forcibly require al Bahlul to come to the proceedings room or even leave the camp he is detained in to come to the hearing tomorrow. Maj. Fleener requested that al Bahlul be brought to the commission building in the event that he changes his mind during the proceedings and wants to be brought into the proceedings room. Col. Brownback agreed and that is what the plan is for tomorrow.

Following, al Bahlul’s decision to boycott the proceedings, Maj. Fleener rose and began by moving to withdraw as al Bahlul’s lawyer, but his motion was denied again by Col. Brownback. Maj. Fleener then proceeded to conduct voir dire asking a number of questions of Col. Brownback, including his relationship with the Appointing Authority of the Military Commissions, John D. Altenburg, who is also the person appeals from the commissions go to. Throughout the voir dire process, Col. Brownback repeatedly refused to answer questions posed by Maj. Fleener claiming the answers weren’t relevant. At the end of his questioning of Col. Brownback, Maj. Fleener stated that he would challenge Col. Brownback’s ability to be the presiding officer in this case. He listed three different bases for his challenges: that Col. Brownback couldn’t be independent, neutral or detached; that he was not qualified; and that his actions have indicated bias.

As you would expect, the prosecution had no challenges to Col. Brownback being the presiding officer in this case and believed Maj. Fleener’s challenges should be denied.

Col. Brownback ruled on Maj. Fleener’s challenges finding that under the standard laid out in paragraph 3(a) of the Military Commission Instruction 8 and the Appointing Authority’s supplemental memorandum on this issue, he is qualified to serve as presiding officer in this case. He further reasoned that since the time of the Appointing Authority’s memorandum, both Military Commission Order 1 and Military Commission Instruction 8 had been revised and that because these revisions were significant, there may be a question about what standard to apply. Given that, he decided to apply the Rules of Courts Martial standard laid out in section 902 and even under that standard he found he is qualified. I applaud Col. Brownback for relying on the courts-martial standard in this situation, but it is hardly surprising if the person whose impartiality and qualifications are being challenged is also the person making the decision, that the outcome would be favorable to the person making the decision.

One of the things I realized sitting in the al Bahlul hearing today – and a point Maj. Fleener made a number of times – was that the military commissions’ rules and procedures are constantly changing based on the whim of the Executive. When al Bahlul had his first hearing in August 2004, not only was the presiding officer in the proceeding room, but so were all of the other commission panel members. But following revisions on August 31, 2005, the presiding officer was now cast back into a role similar to that of a military judge with the commission panel members now being similar to jurors and leading to the commission panel members’ absence at these hearings. Looking at the variety of changes to the rules, there seems to be no principles on which the rules are changed; they seem to change based on the desires of a handful of individuals in the Executive branch. A constant changing of rules based on the desires of a handful of individuals is not consistent with the rule of law the U.S. has been practicing and developing over the last few centuries.

I am curious to see what tomorrow will bring as the al Bahlul hearing continues — the big question in my mind is whether al Bahlul will choose to enter the proceedings room or not. In addition, it seems that Sufiyan Barhoumi’s counsel was only able to get a delay for 24 hours for his client and his hearing is also scheduled for tomorrow. Currently, the plan for the hearing is to only identify the participants and ascertain Barhoumi’s desires for legal representation tomorrow.