“They clearly never met any military attorneys”

Frank Kendall – Human Rights First volunteer consultant – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. He is providing updates of what he observes.

Guantánamo Bay, April 9, 2008: The quote above is from Ahmed al Darbi’s defense counsel, Lieutenant Colonel Bryan Broyles. He was referring to the people who established the military commissions and who, in his view, expected military lawyers to fall in line, mount a token defense, and allow their clients to be convicted. Lt. Col. Broyles’ comment was the high point of an otherwise disconcerting day.

Today was my second day at Guantánamo and my first military commission hearing. (For some information on my background, please see my blog posting from April 8, 2008). I really did not know what to expect, and the experience has given me a lot to think and write about. Let me start with a little background on Mr. al Darbi and his case.

Mr. al Darbi

Ahmed al Darbi is a Saudi citizen now aged 32. He has been in United States custody for six years, since he was 26. He is not charged with any offenses associated with the September 11 attacks, and there is nothing in the record to suggest that he knew of or participated in the planning or execution of those attacks, or for that matter any attack.

The Charges

The government has charged Mr. al Darbi with conspiracy and providing material support to terrorism. While conspiracy and material support are recognized crimes under federal law and can be tried in a normal criminal court, they have never been crimes under the law of war and have never been subject to trial by military tribunals before being named war crimes under the Military Commissions Act of 2006 (MCA). The government alleges that Mr. al Darbi went to Afghanistan in 1996 or 1997 at the age of about 22 and met with Osama bin Laden. He is alleged to have received training from al Qaeda and to have become a weapons instructor and worker at a training camp. He is supposed to have traveled to Pakistan in preparation for an unspecified terrorist operation. From late 2000 or early 2001 until late 2001, al Darbi is alleged to have been involved in several trips to the Middle East to find and buy a boat to be used in a terrorist attack in the Straits of Hormuz. He is alleged to have purchased the boat in late 2001. In the spring of 2002, he is said to have acquired visas for a Yemeni crew and to have purchased a smaller boat to train the Yemenis. He is also alleged to have obtained and used al Qaeda funds for his expenses and to have participated in telephone conversations with other persons, presumably al Qaeda members. There is no allegation that Mr. al Darbi every planned or attempted to carry out a specific attack.

Legal Developments

This morning Mr. al Darbi refused to accept appointed counsel, name an alternative counsel, represent himself, or be present during the proceedings. He also denounced the proceedings as illegitimate and a sham. After assuring himself that Mr. al Darbi understood the consequences of his decisions, the trial judge had Mr. al Darbi escorted from the courtroom and continued the hearing without him present.

After Mr. al Darbi was removed, and in a very short period of time, the judge dealt with a number of pre-trial issues. He asked the government-appointed defense attorney if he had any challenges to the voir dire responses of the judge (responses to written questions designed to determine if the judge has a conflict of interest or could be challenged on other grounds), and was told that there were no challenges. The judge then provided guidance on discovery indicating that the prosecutor should err on the side of providing requested material to the defense if there was any doubt as to relevance or materiality. Finally the judge set a discovery hearing date and directed the defense attorney to inform Mr. al Darbi that he had the right to be present at all future hearings. The judge said that he will ask defense counsel before every subsequent hearing if Mr. al Darbi has been informed of his options and of his decision. With that, the hearing was adjourned.

The Issues of Legitimacy and Adequate Representation

While the paragraphs above convey the essence of events, they fall short of fully capturing what happened or the issues that were raised. Most of the morning was dedicated to the issue of Mr. al Darbi’s representation. Although there were a number of problems with the sound system and with inadequate translation, the judge eventually asked Mr. al Darbi a series of scripted questions intended to establish his decision with regard to representation. Ultimately, Mr. al Darbi declined representation and declined to be present, but he had a few points to make along the way. He was calm and responsive, but it was clear from his tone, even in Arabic, that his remarks were delivered with emotion. I will quote from some of Mr. al Darbi’s translated responses as accurately as possible based on my notes.

“I protest the legitimacy of this court. There is no international court

or court in the U.S. that treats prisoners or accused people like I have been

treated. I have been isolated from the world for six years.”

“I don’t believe there is any attorney who would risk the honor of the profession to come into this court.”

“I want a legal advisor from my own country. Is this part of my rights or not?” (Under the commission rules, he does not have this right).

When asked if he could name an attorney he would accept, he stated: “I have been here for six years. Thank God, I can even still remember the names of my own family.”

When asked if he understood that Lt. Col. Broyles, his appointed military attorney, would represent him even if he refused representation, he responded: “I believe that you can do whatever you want to do.”

When asked if he understood that the trial would proceed without him present, he said: “This doesn’t concern me in any way. This is a theatrical piece. It isn’t true. Like everything that happens in Cuba against the unlawful combatants.”

“I understand that this is a play, the same play that has been played against all the unlawful combatants, claiming that they are a threat to United States national security.”

“History will record these trials as a scandal against you. I advise all here not to continue this play, this sham.”

“I was tortured and forced to say many things. I have committed no crime,

and I demand to be able to prove it.”

One thing I am trying to do in Guantánamo is put myself mentally in the positions of the other people here: guards, prosecutors, defense attorneys, judges, and even detainees in order to try to see the world as they might. In Mr. al Darbi’s case, it is particularly difficult to accomplish this task, but let us try to consider the following: He is not charged with any act of violence, let alone the September 11 attacks. He has already been in prison for six years. He is being tried in a military court for “crimes” that were not recognized as war crimes triable by military commission at the time of his alleged offenses. His attorney, who he is supposed to trust, is appointed by the military of the country that has detained and charged him. His only other option is to retain a civilian attorney from the United States that he is expected to name. How could anyone in this position expect a fair trial or view the court as legitimate?

The Press Conference

Shortly after the hearing, there was an informal press conference. Lt. Col. Broyles chose to speak to the press. The prosecutor did not. Human rights observers were allowed to attend but not to ask questions. I’ll summarize some of Lt. Col. Broyles’ comments.

“Mr. al Darbi’s decision and position is reasonable and conforms to that of

international observers. He reached his position of his own accord, but it

is consistent with what he has seen happen here so far.”

“As a defense attorney, I have an ethical requirement to abide by my client’s

wishes. He doesn’t want my representation. At the same time, I’m

being ordered to provide him with representation by my military superiors.

I’m going to consult my state bar, the ABA, and others for advice on this

ethical issue. I may well have to sit at the trial like a potted plant as

a compromise between my military and professional obligations.” (This will

do wonders for the perceived and real legitimacy of the court).

When asked if the commission might appoint another attorney with a different

perspective, he said yes. (This would also do wonders for the perceived

and real legitimacy of the proceedings).

“It is impossible to do criminal representation effectively without the trust of

the client. There is no way a defendant can ever trust his attorney in the

circumstances we have here.”

When asked if he had discussed with Mr. al Darbi the pros and cons of accepting

his representation, Lt. Col. Broyles answered that he had, but then came the

kicker: “There is a fundamental problem here. This just isn’t a

regularly constituted court. It is a new court that was set up after the

fact with rules built around admitting the evidence that was already available

to convict people for acts that weren’t crimes when they were committed.

How could anyone argue that this is a regularly constituted court?”

How indeed?

Lt. Col. Broyles went on to note that the military commission system was created by the Office of Legal Counsel in Department of Justice (DOJ) rather than the military. He noted that DOJ was becoming increasingly involved in individual prosecutions. In fact, there was a DOJ representative at the prosecutor’s table today.

Broyles speculated that, when DOJ set up military commissions, it did not expect the military lawyers to mount serious defenses. In his words, “they just thought we’d roll over and play by their rules. They clearly never met any military attorneys.”

Today’s Closing Observation

The United States has created a horrible mess here. Instead of relying on the civilian courts, which have already successfully prosecuted a number of terrorist suspects, or even on military courts martial, which also have well-established and fair procedures, the government has attempted to create a whole new legal mechanism, with its own unique rules and procedures. It is certainly possible that a recognizably fair system could be created this way, but to date this experiment has not succeeded.