At Guantánamo last week, the military commission trial system convened for only the second time since President Obama announced a four-month freeze on all proceedings on his first day in office to give the new administration’s inter-departmental Guantánamo Task Force an opportunity to review the best ways in which to deal with the remaining prisoners inherited from the Bush administration.
Reviving the Commissions, Ill-Advisedly
In May, in a major speech on national security, Barack Obama signaled that he was planning to revive the commissions, arguing that, with some amendments, they would be "fair, legitimate, and effective," and promising to "work with Congress and legal authorities across the political spectrum on legislation" that would fulfill these aims.
Pleasant though it was to hear a president talk of involving Congress, without having his arm twisted, Obama’s willingness to revive the commissions flew in the face of widespread opposition from civilian lawyers, a wide range of legal experts, and, most significantly, seven former prosecutors who resigned in disgust at what they saw as the system’s politicization and irremediable faults (including Col. Morris Davis, the former chief prosecutor, and Lt. Col. Darrel Vandeveld, who resigned last September), and all of the government-appointed defense attorneys, who have been prepared to risk their careers to oppose what they all realized was an unjust system.
Critics – myself included – were not placated by Obama’s proposed tweaking of the commissions’ rules, and insisted that the only way forward was to drop the Commissions and proceed with federal court trials. Bizarrely, on the same day as Obama’s speech, the administration announced that Ahmed Khalfan Ghailani, a suspect in the 1998 African embassy bombings, would face a trial in New York, and in an accompanying press release, the Justice Department trumpeted its "long history of … successfully prosecuting terror suspects through the criminal justice system" (and attached a list of successful prosecutions over the last 16 years), which rather seemed to prove the point that the commissions – which have achieved only three dubious results (David Hicks, Salim Hamdan, and Ali Hamza al-Bahlul) – should not be revived.
Nevertheless, in the last few weeks the Senate Armed Services Committee – and its chairman, Sen. Carl Levin, who really should know better – bowed to the president’s wishes and tweaked the wording of the Military Commissions Act of 2006 (which revived the commissions after the Supreme Court ruled that their first incarnation was illegal), even though, as I reported last week when Lt. Col. Vandeveld delivered testimony to the committee that should have halted the politicians in their tracks, it still allows the use of information obtained through coercion and still allows for hearsay information to be appraised as evidence by judges who are not qualified to make such decisions.
The legislation has yet to be approved by the Senate, but last week the commissions reconvened anyway, even though the as-yet-undecided debate about their future added another layer of confusion to events that, as has been typical throughout the long and ignominious history of the commissions, involved technical difficulties, uncooperative prisoners, and bouts of wrangling over the rules.
An Outlandish Claim Kicks Off the Proceedings
One of the week’s few dramatic highlights came at the very beginning. Speaking to reporters on Tuesday, before the pre-trial hearings began, Navy Capt. John Murphy, the commissions’ new chief prosecutor, announced that prosecutors were ready to proceed with cases against 66 of the remaining 228 prisoners. (The 229th, Ali Hamza al-Bahlul, is already locked up for life – in a cell on his own somewhere in Guantánamo – after his disturbingly one-sided trial in November.)
As David Danzig, deputy program director at Human Rights First, explained, Murphy said, "We have 66 viable cases" and added that he was "personally comfortable" that "the government could mount a case that would not depend on evidence gathered through the use of coercion." Danzig also noted that Murphy "refrained from commenting on whether the government might seek to bring some of those cases to trial in federal civilian courts."
Personally, I’m amazed that Murphy could claim that there are as many as "66 viable cases," given that intelligence reports over the years have put the number of prisoners with any meaningful connection to terrorism as somewhere between two dozen and 40 of the prisoners (and also given that, of the 23 cases that were still active when Bush left office, two involved juveniles and at least eight of the cases had nothing to do with "war crimes"). But what particularly exercised some of the reporters was that the prosecutor’s office seemed to be "making decisions about what evidence was appropriate and what evidence was not appropriate to use without any independent review."
Vic Hansen, a former Army judge advocate general officer who was observing the proceedings for the National Institute of Military Justice, said, "They say repeatedly that they are not going to rely on evidence that was obtained using coercion. Well, it’s the prosecution who is making that call alone without any transparency."
This was a very valid point, and as Danzig noted, although Murphy "said that the prosecution had developed ‘a standard’ to ensure that no evidence obtained improperly would be used in the trials … he declined to elaborate on that standard" and did not refer to the fact that the Senate is still discussing whether to impose a voluntariness standard (at the instigation of the Obama administration), which, as Danzig stated, "would presumably exclude coerced evidence." As Hansen added, "What it comes down to is more or less the government saying, ‘just trust us.’"
Challenges and Calls for Delay in the Case of Ibrahim al-Qosi
On Wednesday, when the pretrial hearings were supposed to begin, court staff complained they couldn’t hear Navy Cmdr. Dirk Padgett introduce himself as a prosecutor in the case of Ibrahim al-Qosi, one of three prisoners whose cases were being discussed that day, prompting a reply from Padgett that, to some, could serve as a motto for the whole of the commissions. "Hopefully, this is going to get better," he said.
In the event, things didn’t get better at all. In the case of al-Qosi, a 49-year-old Sudanese prisoner who is accused of being a bodyguard and sometime driver for Osama bin Laden, prosecutors called for a delay "in the interests of justice" until September, which would, apparently, give the Obama administration time to complete its review of the cases. Marine Corps Capt. Seamus Quinn, one of al-Qosi’s prosecutors, stated, "The continuance is needed … to address and eliminate all possible challenges to this process," according to Reuters.
The call for a delay infuriated al-Qosi’s defense lawyers, who have long maintained that their client was nothing more than a cook for bin Laden, and of no more significance than Salim Hamdan, one of bin Laden’s drivers, who is now a free man in Yemen, having served a five-month sentence that he was given after his trial last August. As Reuters described it, al-Qosi’s lawyers asked the military judge "to either dismiss the charges or move forward."
"You cannot sit somebody in indefinite detention," Navy Lt. Cmdr. Travis Owens said. "It violates every principle we have as Americans." Invoking what Carol Rosenberg of the Miami Herald described as a "justice-delayed, justice-denied" argument, on the grounds that al-Qosi "was among the first men taken to the prison camps when they opened in January 2002," Owens added, "He was one of the guys who was kept in the dog cages. Talk about oppressive confinement."
Challenges and Calls for Delay in the Case of Mohammed Kamin
While the judge, Air Force Lt. Col. Nancy Paul, refused to make an immediate ruling on the prosecutors’ request, even more chaotic scenes took place in an adjacent courtroom, where a second pretrial hearing was taking place in the case of Mohammed Kamin, an Afghan seized in 2003.
Kamin’s is one of the more ludicrous cases put forward for a trial by military commission – or, for that matter, any kind of trial – as I explained last March, when he was arraigned:
"[Kamin] is accused of ‘providing material support for terrorism,’ specifically by receiving training at ‘an al-Qaeda training camp,’ conducting surveillance on U.S. and coalition military bases and activities, planting two mines under a bridge, and launching missiles at the city of Khost while it was occupied by U.S. and coalition forces. He is not charged with harming, let alone killing, U.S. forces, and were it not for his supposed al-Qaeda connection – he apparently stated in interrogation that he was ‘recruited by an al-Qaeda cell leader’ – it would, I think, be impossible to make the case that he was involved in ‘terrorism’ at all."
On Wednesday, Kamin boycotted the proceedings, telling a military official who offered him the opportunity to take a shower before the hearing, "I’ll take a shower when you guys are ready to send me home." In his absence, prosecutors also called for a delay, although no one actually turned up to make the request. Instead, a heavily pregnant prosecutor, Navy Lt. Rachel Trest, called in by closed-circuit feed from Washington, although, as Carol Rosenberg noted, "her argument was inaudible at the media center designed years ago to simultaneously broadcast both trials to journalists."
There was, however, an outburst of drama when, in spite of a court tip sheet predicting that Navy Lt. Rich Federico, one of Kamin’s defense lawyers, would "ask for guidance on how much trial preparation could take place during the White House-mandated interregnum," Federico instead urged dismissal of the entire case, referring to comments made last week by Justice Department national security lawyer David Kris, who told the Senate Armed Services Committee [.pdf], "Our experts believe that there is a significant risk that appellate courts will ultimately conclude that material support for terrorism is not a traditional law of war offense, thereby reversing hard-won convictions and leading to questions about the system’s legitimacy."
As this is the only charge Kamin faces, Federico told the judge, "They cannot ethically proceed on this charge in this forum. It’s appalling. It’s just a waste of everyone’s time." The Wall Street Journal added that he also said the government’s continued pursuit of the case was "unethical, immoral, and unjust," called the proceedings "a charade, a complete fraud," and stated that the commissions remained "a broken system."
As with al-Qosi’s case, Kamin’s judge, Air Force Col. Thomas Cumbie, refused to make an immediate ruling on the prosecution’s call for a delay – or Federico’s unexpected intervention – although, in response to a challenge from Federico he conceded that "the rules of the court were still evolving," as Carol Rosenberg put it, and stated, "I’m not saying in any way you ambushed me. Things change."
Nevertheless, the questions regarding the validity of the "material support" charge are unlikely to go away and will need resolving before any further hearings take place, Ironically, the charge is a valid crime in a federal court, but it has been contested in the commissions since it was first grafted onto the legislation in 2006. As Salim Hamdan’s civilian lawyer, Harry Schneider, explained on Wednesday, "We’ve always been of the view that [material support] was not a war crime and the conviction should not stand." He added, as Carol Rosenberg put it, that the debate in the commissions "appeared to enhance a Hamdan clemency bid already on file with the Pentagon," and he stated that, if the administration does drop material support as a crime in the commissions, "Salim would be exonerated in the sense that he would never have been convicted of anything."
No Lawyers for Omar Khadr
On Wednesday afternoon, Omar Khadr, the Canadian who was just 15 when he was seized in 2002, returned to the court to resume the discussions about his lawyers that he was having on June 1, when the commissions first reconvened. On that occasion, as Michelle Shephard explained in the Toronto Star, Army Col. Patrick Parrish "repeatedly lambasted Khadr’s legal team" for their infighting, which had led Khadr to conclude that he couldn’t trust any of them, but commended Khadr himself for being "well-spoken" and "professional."
Six weeks ago, Parrish refused to allow Khadr to be unrepresented, and the Canadian reluctantly decided to stick with Lt. Cmdr. William Kuebler, who, it must be noted, has campaigned assiduously on Khadr’s behalf, but on Wednesday, Khadr’s suspicions were back to the fore. "I don’t trust the office of military defense," he said, prompting Parrish to make the unprecedented decision to appoint two civilian lawyers instead.
Mostly a No-Show for the 9/11 Pretrial Hearing
The big news of the week was supposed to be the pretrial hearing of the five men accused of involvement in the 9/11 attacks, but in the end this too was a damp squib. No one turned up at all in the morning, after the men refused to leave their cells, and in the afternoon, Khalid Sheikh Mohammed, the unarguable showman of the group, refused to attend, as did Ramzi bin al-Shibh, even though the hearing was convened to deal with ongoing issues regarding his mental competency and that of another of the five, Mustafa al-Hawsawi. Al-Hawsawi, Ali Abdul Aziz Ali, and Walid bin Attash eventually turned up in the courtroom, but there was little activity.
According to Reuters, "al-Hawsawi soon demanded to leave after complaining he would not be allowed to speak," and "bin Attash, given five minutes to address the court, complained that the presiding judge, Army Col. Steven Henley, had not responded to letters the five men had written to him ‘a long time ago.’" In the only flicker of the dissent normally associated with KSM’s presence, he explained, "If you don’t have enough patience to take this case, just give it to a different judge. We view the judge and prosecution as one person. There’s no difference." Later, bin Attash showed his disdain for the proceedings by throwing a paper plane – fashioned, presumably, from his court papers – at one of his co-accused.
The rest of the session focused on attempts by bin al-Shibh’s lawyers to "allow a defense consultant to examine CT scans of her client’s brain and perform further tests, including possibly an MRI, to ‘determine whether any lesions in his brain affect his cognitive functioning.’" Navy Cmdr. Suzanne Lachelier explained that bin al-Shibh has been diagnosed with "delusional disorder," but when she tried to explain that he had been subjected to sleep deprivation, a court censor cut off the feed to the media center.
In an attempt to rebuff these complaints, one of the prosecutors, Navy Lt. Clayton Trivett, said that bin al-Shibh’s complaints about sleep deprivation may have been produced by his preexisting condition. Trivett explained that bin al-Shibh "has accused guards of pumping foul smells and loud noises into his cell and ‘vibrating his bed’ to keep him awake," even though "the government’s position is that it’s not happening and it’s never been happening," although another interpretation could be that the initial collapse of bin al-Shibh’s mental health was caused by whatever happened to him during the four years that he was held in a secret CIA prison before his arrival at Guantánamo in September 2006.
With no visible progress – and with the little that did take place overshadowed by the dispute over the charge of material support for terrorism, which would have a knock-on effect on several other cases – this was another dismal outing for the commissions and, surely, another warning for the Obama administration that any kind of revival of the wretched trial system will remain fraught with insoluble problems.