The first of the criminal military hearings for detainees at Guantanamo Bay, Cuba, ended this week amidst complaints from defense lawyers about lack of resources and harsh criticism from human rights groups.
Even before the hearings began on Tuesday, they were mired in controversy with organizations such as the American Civil Liberties Union and Human Rights Watch accusing the government of stacking the deck against the accused and setting up a legal framework far inferior to the American civilian legal system.
"The commissions got off to a chaotic start, with deep confusion about the process, concerns of bias among panel members, and grossly inadequate interpreters," said Sam Zia-Zarifi, who is acting as an observer for Human Rights Watch, an international rights monitoring organization. "Some military lawyers and officers have been put in the impossible position of trying to wring justice from a basically unfair system."
Four detainees, one from Sudan, two from Yemen and one from Australia, appeared before a White House-appointed panel of commissioners this week, during heavily scrutinized yet especially closed hearings. Only five representatives of human rights groups and 54 members of the media were permitted to observe the proceedings, and no one was allowed to use recording devices, reports the LA Times. Authorities say they are not planning to ever release photographic, video or audio records of the trials.
In the start of criminal trials that will determine the fate of four men as well as leave a lasting impression of the American justice system, defense attorneys raised numerous questions about the commissioners’ competence and impartiality. Counsel for the defendants also protested that they were far outstaffed by the prosecution’s legal teams and complained that translators for the accused were severely inadequate.
Before the first hearing on Tuesday, military-appointed lawyer Lieutenant Commander Charles Swift, who represents one of the detainees, said, "Never in American history has a president or a Defense Department asserted this raw power and certainly not after the revolution in international law heralded by the 1949 Geneva Conventions, which the United States signed and ratified in 1955."
Swift said the military tribunal that will try his client "flatly violates not only the United States Constitution, but the very laws of war the administration claims to be upholding."
Media reports and accounts from observers portray numerous incidents in which shoddy translations marred the proceedings.
"[T]he translation was so poor that English-speaking people like me – or even like the prosecutors, defense counsel or commissioners – couldn’t fully understand what was going on," wrote Anthony Romero, executive director of the American Civil Liberties Union, who observed the hearings and wrote daily updates posted on the ACLU website.
"An essential part of a fair system of justice is ensuring adequate translation of the proceedings," Romero wrote. "You have to ask why can’t the U.S. produce world-class translators in order to prosecute an apparently self-confessed member of the al-Qaeda?"
Under questioning from defense lawyers it was revealed that none of the commissioners, save the head of the panel, have training in military, U.S., or international law.
In a particularly dramatic exchange, Lt. Cmdr. Swift, who represents Yemeni prisoner Salim Ahmed Hamdan, asked alternate panelist Lieutenant Colonel Curt S. Cooper whether he had heard of the Geneva Conventions – the body of law that dictates the rules by which signatory nation states are bound during international conflict.
"Not specifically, no sir, and that’s being honest," answered Cooper, who added that he looked forward to reading the "three Conventions."
"Actually, there’s four, sir," Swift replied.
Responding to the panelists’ apparent lack of knowledge in legal manners, Deborah Pearlstein, who is observing the tribunals on behalf of Human Rights First, told the LA Times: "We’ve asked five very able commission members, who have essentially no legal training, to decide complex questions of constitutional and international law, and they are struggling with the definition of ‘jurisdiction,’ of ‘due process.’ Those terms are so basic. It calls the credibility of the entire process into question when we don’t even have a baseline to start."
Also coming to light during the questioning of the judges was how intimately involved several of them were in Washington’s so-called "war on terror," specifically operations that had brought them into direct contact with men now detained on the island prison. For instance Air Force Colonel Timothy K. Toomey served as an intelligence officer in a task force charged with capturing some of the Guantanamo detainees, and 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.
Speaking to Agence France-Presse, an observer for the American Bar Association, Neal Sonnett, said the system is too "enclosed" with soldiers acting as "the captor, the prosecutor and the defender and the reviewer and the jailer or the executioner."
U.S. officials defended the process. Though he admitted that the tribunal’s proceedings "needed to be refined," Army Colonel David McWilliams, spokesperson for the commission, told the LA Times: "I think the legal process did exactly what it needed to do. It allowed for zealous defense under public scrutiny."
Lt. Cmdr. Swift and Joshua Dratel, who represents Australian detainee David Hicks, submitted requests that many of the commissioners be removed from the panel, noting their lack of legal knowledge and concerns over their ability to be impartial.
It is unclear how far such a challenge will go, since it will be filed with the same authorities who appointed the commissioners in the first place.
Human rights observers made it a point to criticize this lack of an independent review process. Rights groups highlighted these flaws while calling attention to what they said were more "structural problems" with the tribunals.
The ACLU’s Romero questioned the fairness of having the same commissioners preside over all four cases. "[It] might not be a good idea that the same panel members hear all four cases with similar facts and questions of law, since the findings in one commission may taint the outcome of the findings in another," Romero wrote in his weblog.
Additionally, rules for admitting prosecutorial evidence into the cases are much looser than in a civilian criminal hearing, and the accused are not guaranteed knowledge of all the evidence against them.
The human and civil rights groups present at Guantanamo Bay, in a press release renewed their calls for the U.S. government to replace the tribunals with another system more consistent with what they called a "process that would provide fair and impartial trials consistent with U.S. and international standards."
