Defense Challenges Tribunals’ Legitimacy

The first of four scheduled criminal hearings for Guantanamo Bay detainees went forward today, notwithstanding concerns from human and civil rights groups and a legal challenge in U.S. civilian courts. During the hearing, the defense challenged the military judges’ credentials and potential conflicts of interest, as well as the legality of the tribunals themselves.

The criminal tribunals are the first of their kind in more than 60 years and have outraged civil libertarians and human rights advocates who claim that the standards of justice do not match those of the U.S. civilian system.

Four detainees fingered by the Bush administration are to face preliminary hearings this week. In today’s hearing, Salim Ahmed Hamdan, a Yemeni who served as a driver for Osama bin Laden, was read the charges against him, which include conspiracy to commit war crimes. The others – Australian David Hicks, Yemeni Ali Hamza Ahmed Sulayman al-Bahlul, and Ibrahim Ahmed Mahmoud al-Qosi of Sudan – will be informed of the charges against them later this week, having spent more than two and a half years in U.S. custody.

Lawyers for the defendants have complained that the proceedings seem stacked against their clients and that the rules are confusing. Major Mark Bridges, Hamza’s lawyer, told National Public Radio: "It’s difficult to practice law in a criminal proceeding where the rules are constantly changing. That’s the environment that we’re operating in."

"I’ve never gone into a hearing with so little information," Navy Commander Charles Swift, who represents Hamdan, told the Associated Press. Since he was appointed by the military to defend Hamdan, Swift has maintained that his client is not a militant, but was instead a civilian driver for bin Laden, who never took up arms against the U.S.

Swift has vigorously challenged the legality of the Bush administration’s intention to try his client in front of a military commission, arguing that the military commissions themselves violate U.S. law. He has joined forces with Seattle law firm Perkins Coie to fight the proceedings against his client in U.S. civilian courts. That case, to be heard in Washington, D.C., will call into question the constitutionality of the new tribunals.

At today’s hearing, Swift questioned the panel of judges on their military experience and knowledge of international law. Only one of the panelists, Army Colonel Peter Brownback, who serves as presiding judge in the hearings, has legal training; he served as a military judge for ten years. Swift challenged even Brownback’s ability to lead the panel, stating that the judge was not even a member of the Bar Association in his home state of Virginia.

As reported by the Los Angeles Times, one of the alternate panelists revealed that he did not even have an understanding of the basic international law that sets out the requirements for the treatment of detainees during times of war. When Swift asked Lieutenant Colonel Curt S. Cooper if he knew what the Geneva Convention was, Cooper answered: "Not specifically. No, sir. And that’s being honest."

Swift said that Brownback would have "unlawful command influence" over the other members of the tribunal because of his experience on legal matters compared to his colleagues. Additionally, Swift challenged what he said were panel members’ "extensive backgrounds" and involvement with detention of "enemy combatants, military intelligence and the war in Afghanistan."

During Swift’s questioning, it was revealed that panelist Air Force Colonel Timothy K. Toomey served as an intelligence officer in a task force charged with capturing some of the Guantanamo detainees. Another panelist, Marine Colonel R. Thomas Bright, served as an officer at the U.S. Central Command and was responsible for transporting detainees to Guantanamo from Afghanistan.

According to Agence France-Presse, Swift asked that five of the panelists, including Brownback, stand down, saying their presence on the commission "does not give confidence to the accused and does not give confidence to the public at large that [the trials] will be fair."

Presiding officer Brownback agreed to send Swift’s challenge to the U.S. military authorities who oversee the tribunals.

On top of accusations about the impartiality of the judges set to rule at the tribunal, Swift is joined by other defense lawyers and civil and human rights advocates in denouncing other controversial aspects of the tribunals. Human Rights Watch, a New York-based international monitoring institution, is one of several non-governmental organizations in Cuba this week observing the proceedings.

"We’re concerned that the military commission rules lack key fair trial protections," said Wendy Patten, U.S. advocacy director at Human Rights Watch (HRW), in a press statement. "Under these rules, the military serves as prosecutor, judge, jury, appeals court and potentially even as executioner. The commission rules do not create a level playing field."

HRW and other organizations, such as the American Civil Liberties Union, have expressed concern that hearsay evidence can be admissible during the military trials and that defendants are not guaranteed the right to see all evidence in the case against them.

Another point of contention centers on how evidence expected to be used against the defendants during the trial was gathered. Detainees released from Guantanamo have accused their former U.S. captors of torturing them during interrogations and forcing confessions.

Additionally, rights groups cite the lack of opportunity for appeal to civilian courts.

"The military commissions offer no possibility for independent appeal, no matter how serious the error," said Patten. "A fair system of justice provides an opportunity for trial mistakes to be corrected through independent review."

Swift also filed a motion to delay the tribunals until after Hamdan’s challenge in U.S. civilian court is heard, reports AFP.