March 2, 2006 – Not Full and Fair

Security Detainees/Enemy Combatants

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 2, 2006

Not Full and Fair

Today (as with yesterday) I witnessed incredible lawyering from both the prosecution and the defense counsel. I observed two different Presiding Officers conduct themselves with the utmost professionalism and thoughtfulness. And yet after spending this week observing the commissions, I do not believe the military commissions as they are currently constituted adhere to the United States’ legal obligations both under domestic and international law. But I am getting ahead of myself.

As I mentioned yesterday, Ali Hamza Ahmed Sulayman al Bahlul’s hearing continued this morning. Al Bahlul chose not to attend the proceedings though he was in the building where the commissions are held. He did, at the very end of the hearing, ask through his detailed military counsel, Maj. Tom Fleener for “a private audience with the presiding officer.” That request was denied by Col. Peter Brownback III, the Presiding Officer in the case.

Apart from the question of al Bahlul’s presence, the primary issue in today’s proceedings was Maj. Fleener’s motion to quash the current proceedings until the entire commission panel is sitting to decide the issues of whether al Bahlul can represent himself and whether Maj. Fleener may withdraw as counsel. Now basically the basis of Maj. Fleener’s motion is that the August 31, 2005 revision to Military Commission Order No. 1 (MCO 1), which makes the presiding officer the sole trier of law, conflicts with the President’s November 2001 Military Order creating the commission. Prior to the revision and when al Bahlul had his first hearing in August 2004, the rule was that all members of the commission sat in the proceedings as triers of law and fact. And the Legal Adviser to the Appointing Authority, Brig. Gen. Thomas L. Hemingway, had found that all commission members needed to be present in order to make decisions. The revisions to the MCO 1 made by the Office of the Secretary of Defense now casts the Presiding Officer in the role of military judge and the panel members as jurors or triers of fact, not law.

Maj. Fleener argued that President Bush modeled his November 2001 Military Order on President Roosevelt’s 1942 order establishing military commissions at that time. In that military commission all members sat as both triers of law and of fact. And therefore the revision to MCO 1 conflicts with the President’s 2001 Military Order. He also rejected the prosecution’s argument that the President has blessed the revised version of MCO 1 because he has remained silent. The prosecution later amended its arguments, reasoning that since the Detainee Treatment Act which was signed by the President references MCO 1 that means the President supports the revision. But it can be argued that just because the President signed legislation, which had nothing to do with what was at issue here, referencing the revised MCO 1 does not mean he agreed with the substance of this particular revision.

Col. Brownback thought differently. He ruled against Maj. Fleener, finding the prosecution’s arguments persuasive, and that the Office of the Secretary of Defense did not exceed its authority under the President’s Military Order by revising MCO 1 and that MCO 1 was not in conflict with the President’s Military Order.

The other thing I would like to mention that I didn’t yesterday was al Bahlul’s request to be moved to a location near Khalid Sheikh Mohammad or “Ramzi Shibh” (I believe he is referring to Ramzi bin al Shibh). Col. Brownback indicated that he did not have the power to transfer al Bahlul near either of these two men and moved on with the proceedings. What is interesting about this is that the U.S. has refused to acknowledge where they are holding Khalid Sheikh Mohammad and Ramzi bin al Shibh. Both are believed to be held in secret CIA-run facilities. In the case of Khalid Sheikh Mohammad, numerous press reports indicate that he was subjected to torture, including waterboarding during interrogations. It is unclear why al Bahlul asked to be moved close to Khalid Sheikh Mohammad, but Col. Brownback stopped al Bahlul from continuing on this topic, I believe fearing that he may again make statements against his interests.

The other hearing I was able to observe today was that of Sufiyan Barhoumi. Given the fact that he had just learned of his dad’s passing away, the presiding officer, Navy Cpt. Daniel E. O’Toole, suggested that the hearing only consist of identifying all parties and ascertaining Barhoumi’s wishes as to counsel.

Barhoumi was taller than I expected, approximately 5′ 10″. He had a full head of hair and a full beard that covered most of his face. He was dressed in a blue and white checked shirt and he appeared to be missing his left hand (we learned later from his detailed military counsel, Cpt. Wade Faulkner that this was a defect he was born with). Barhoumi was very subdued during the hearing.

The hearing itself was very short, approximately 15 minutes. It was the first time Cpt. O’Toole presided over a proceeding and I found him to be fair and very understanding of Barhoumi’s recent family tragedy. Barhoumi indicated that he did recognize Cpt. Faulkner as his lawyer and asked for a specific civilian lawyer, Lee Foreman, who is a criminal defense lawyer. Cpt. Faulkner found Foreman after Barhoumi informed him that he wanted a civilian lawyer and Foreman has agreed to represent Barhoumi in this capacity. Cpt. Faulkner also asked that his client be able to make a brief phone call to Algeria to talk to his family given the current circumstances. Cpt. O’Toole asked that Faulkner go through the chain of command first, but he seemed open to the possibility. Cpt. Faulkner later informed us that it is likely Barhoumi will have the opportunity to make this call in the coming weekend or early next week. Supposedly, this is not unprecedented and the Joint Task Force at Guantanamo has done this before for detainees in special circumstances. This was a surprise to me as I had not heard of such phone calls being allowed.

And at the end of the Barhoumi hearing, the prosecution asked that Cpt. O’Toole amend his discovery order to allow Cpt. Faulkner to share information marked law enforcement sensitive or for official use only with his client. This was incredibly heartening given the concerns expressed by the defense earlier this week. This optimism regarding the actions of the prosecution was reinforced for me when we had a chance to meet with Col. Moe Davis, the chief of prosecution.

My impression of Col. Davis was that he was an incredibly dedicated lawyer and that he was committed to making this process as full and fair as possible. Unfortunately, what I came away with from our meeting with him was a certainty that it was the military commissions system and its rules that were deeply flawed and lead to proceedings that are far from full and fair.

We inquired into whether it was the prosecution’s policy to allow detailed military counsel to share evidence produced under discovery that was labeled “law enforcement sensitive” or “for official use only” with their clients, like they did in the Barhoumi case. Col. Davis informed us that it was the prosecution’s policy to allow for that information to be shared with the accused. He went further, saying that he didn’t think there would be a need to have closed hearings in any of the cases he had looked at so far and that he believed he didn’t need to use classified information in trying these cases. And that it was his goal to not have closed hearings. These are all laudable decisions Col. Davis has made, but what troubles me is precisely that they are decisions made within his discretion. Col. Davis is making these choices because he believes that they will lead to a full and fair trial, but the rules of the commission do not require him to make those decisions. We can’t simply rely on having individuals making the right decisions so the proceedings will be full and fair. The rules themselves have to ensure that the proceedings will be full and fair and unfortunately, the commissions as currently constituted do not provide for that. The commission rules need to, among other things, exclude evidence of torture; they need to reject closed hearings for an overly broad category of secret information; and they need to provide for an independent appeals process outside the military chain of command.

Well, tonight is my last night at Guantanamo. I leave on an early flight tomorrow, but before I sign off I would like to say that every military person that I encountered here during my visit has been incredibly gracious and helpful. Everyone from the Lieutenants, Sergeants, and Specialists assigned to escort us during our stay here, to the Public Affairs Officers (one who sought me out after reading an article quoting me this week criticizing the Administrative Review Board process to engage me in a stimulating discussion regarding my criticisms), to the participants in the military commissions proceedings has been welcoming and incredibly professional. On behalf of Human Rights First, I would like to thank the Office of Military Commissions for allowing us to observe these proceedings and extend my thanks especially to all of those individuals who deal with the logistics of getting us down here and addressing our requests once we are down here. And I would also like to thank the American Constitution Society for inviting us to post on its website.

So, I will sign off for now. But just so you know, as of now, the next hearings are scheduled for the week of April 3-7 when the commission will hear the cases of Binyam Muhammad, Omar Khadr, and Sufiyan Barhoumi.