The Pentagon's GuantÃ¡namo Problem
In what appears to be nothing more than propaganda masquerading as news, the U.S. military has announced that it will "televise the GuantÃƒÂ¡namo trial of accused September 11 mastermind Khalid Sheikh Mohammed and five other suspects so relatives of those killed in the attacks can watch on the U.S. mainland."
Army Col. Lawrence Morris, the chief prosecutor of GuantÃƒÂ¡namo's system of trials by Military Commission, stated, "We're going to broadcast in real time to several locations that will be available just to victim families," adding that the footage would be "beamed to closed-circuit television viewing sites on military bases at Fort Hamilton in New York, Fort Monmouth in New Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts."
While there seems little doubt that Col. Morris is sincere, it's also apparent that the trial under discussion will not be taking place anytime soon, and that announcements of broadcasts designed to appeal to the families of 9/11 victims are premature, to say the least, and more judiciously regarded as attempts to shore up the disputed legitimacy of the Commission process.
Conceived by Dick Cheney and his close advisers in November 2001, as an alternative to either the U.S. court system or the U.S. military's own judicial processes, the Military Commissions have been heavily criticized for allowing the possibility of withholding evidence from the accused and of using evidence obtained through torture. This latter provision was later dropped, but the possibility of using evidence obtained through coercion remains at the discretion of the government-appointed military judge, and it should also be noted that this is an administration that has found it notoriously difficult to differentiate between acts of torture and acts of coercion.
The Commissions have also stumbled from one disaster to another. Dismissed as illegal by the Supreme Court in June 2006, they were resuscitated by Congress just a few months later, but were then struck down by their own judges in June 2007, on the grounds that the legislation that had revived the process -- the Military Commissions Act -- had authorized the judges to try "illegal enemy combatants," whereas the process at GuantÃƒÂ¡namo that had supposedly made the prisoners eligible for trial -- the Combatant Status Review Tribunals, themselves heavily criticized for relying on secret evidence obtained by dubious means -- had only declared that the prisoners were "enemy combatants."
Although this issue was resolved just a few months later, in a hastily-convened appeals court, the Commissions have never, even briefly, escaped from the deep shadows cast over their legitimacy by their own government-appointed military defense lawyers, who have maintained, from the moment that they first investigated the new trial system in any detail, that the Commissions are, to quote just a few examples, "implements for breaking the law" by concealing evidence of torture (Lt. Cmdr. Charles Swift, who represented Salim Hamdan, a driver for Osama bin Laden, in the Supreme Court case that threw out the first system of Military Commissions), and rigged, ridiculous, unjust, farcical, and a sham (Lt. Cmdr. William Kuebler, who represents the Canadian Omar Khadr).
Currently mired in controversy in the case of Khadr, who was just 15 years old when he was captured -- and, it was recently revealed, may not have killed the U.S. soldier whose murder is the key charge against him -- the Commissions have fared no better in any of the other pre-trial hearings that have taken place recently. Lawyers for Salim Hamdan have fought tenaciously to establish that he had no insider role in al-Qaeda and should therefore have rights as a Prisoner of War, and in the last month three other prisoners have resorted to disrupting their pre-trial hearings through a combination of non-cooperation and pleas for justice that have done little to reassure the wider world that the process is either valid or fair.
As I reported last month, the first of the three to boycott the process was Mohamed Jawad, an Afghan who, like Omar Khadr, was also a juvenile when he was seized after allegedly throwing a grenade at a vehicle carrying two U.S. soldiers and an Afghan translator. Dragged from his cell to attend his hearing, he told the judge in his case, Col. Ralph Kohlmann, "My right has not been given to me. I have not violated any international law. There are many accusations against me Ã¢â‚¬Â¦ they don't make any sense Ã¢â‚¬Â¦ I am a human being." He added that he "continued to be treated unjustly and interrogated, and that he wanted the 'whole world' to know it."
Jawad was followed by Ahmed Mohammed al-Darbi, a Saudi captured in Azerbaijan and rendered to GuantÃƒÂ¡namo via Afghanistan, who is accused of plotting attacks on shipping for al-Qaeda. After al-Darbi refused to take part in the Commission process, explaining that it lacked legitimacy, his military-appointed lawyer, Army Lt. Col. Bryan Broyles pointed out that he had no choice but to accept his client's actions, which, as the Associated Press put it, he described as the result of a "reasoned decision."
Although the judges in the Commissions attempted to insist that the lawyers "must carry on with their defense even if their clients boycott," Lt. Col. Broyles was adamant, as he told reporters, that al-Darbi's decision "should mean Ã¢â‚¬Â¦ that I sit very quietly, answer the judge's direct questions and that's it." He added that his role in al-Darbi's forthcoming trial was now equivalent to that of a "potted plant," and that he would "almost certainly" file a challenge against any order demanding that he defend his client against his wishes.
Lt. Col. Broyles' criticism is more significant than it may at first appear, as it highlights a conflict of interest that is genuinely troubling to defense lawyers called upon to defend clients who subsequently refuse their services. Under the terms of their military contracts, they are supposed to follow orders and insist on defending the men, even though they refuse counsel, but as civilian lawyers they could have their licenses revoked if they attempt to defend clients who have fired them.
This conflict of interest has arisen in the Commissions before. In their first incarnation, before the Supreme Court ruled that they were illegal, two of those charged -- Ali Hamza al-Bahlul, a Yemeni whose pre-trial hearing is expected imminently, and Ghassan al-Sharbi, a Saudi who has not yet been charged under the new system -- refused to be represented by the lawyers assigned to them: Major Tom Fleener and Lt. Cmdr. William Kuebler, who now represents Omar Khadr.
In an article in GQ last summer, Major Fleener and Lt. Cmdr. Kuebler both explained that they were unable to find any justification for the administration's insistence that the prisoners were not allowed to represent themselves. As Sean Flynn noted, "The right to self-representation [has] been a codified tenet of American law for 217 years. Under established rules, whether a man can competently defend himself is irrelevant; he need only be competent to make the decision to represent himself." Kuebler believed that al-Sharbi was competent to make that decision. "Therefore," Flynn continued, "Kuebler believed he had an ethical obligation to step aside. A lawyer can't force himself upon an unwilling client, and no credible court would ever allow such a thing. To do so would be to replace a vigorous defender with a prop, an actor in a charade that only mimicked a proper trial."
Major Fleener faced a similar problem in the case of Ali Hamza al-Bahlul. He told Flynn, "The concept of compelled representation has always bothered the crap out of me. You just don't force lawyers on people. You don't represent someone against his will. It's never, ever, ever done." Flynn then explained, "The reason it's never done is that it undermines the concept of a fair trial. When a man's life or liberty is at stake, he gets to decide who will speak for him. That's the way American courts work, have always worked. To eliminate that right is to begin to transform a trial into a pageant."
On April 10, when a third prisoner refused legal representation in his trial by Military Commission, what appeared to be a trend began to attract the interest of the world's media. Ibrahim al-Qosi, a Sudanese prisoner accused of working as an al-Qaeda operative, told Air Force Lt. Col. Nancy Paul, the judge at his pre-trial hearing, that "he did not want a lawyer and would not attend future hearings because he did not consider the court legitimate," as the AP described it. "I do not recognize the justice or the lawfulness of this court," he said, adding, "What is happening in your courts is in fact a sham, which aims solely that the cases move at the pace of a turtle in order to gain some time to keep us in these boxes without any human or legal rights." As the AP report continued, "He later removed the headphones used to hear the translator and said he would participate no further, declining to answer the judge's questions," and saying, "I will leave the field and you can play as you want to play."
Although Brig. Gen. Thomas Hartmann, the legal advisor to the Commissions' convening authority, attempted to shore up the ailing process, pointing out that the Commissions' rules "provide for the process to move forward whether or not the accused chooses to participate," and defending the trials as "extraordinarily fair by any norm" and providing "substantial protections," attorney Neal Sonnett, who monitors the Commissions for the American Bar Association, explained why proceeding with trials without the defendants being present would be potentially fatal for their perceived legitimacy. "If all these cases are going to proceed with empty chairs," he said, "what has already been called a kangaroo court will just be highlighted as really a kangaroo court."
It later transpired that al-Qosi's defense lawyer, Navy Reserves Cmdr. Suzanne Lachelier, had not even been able to meet her client. As Carol Rosenberg explained in the Miami Herald, she had asked the judge "to help her gain access to [al-]Qosi's cell to try to persuade him -- face to face -- to accept her services. The judge refused. Prison camp commanders have said such access is against Pentagon policy."
With the judge insisting that the case proceed as planned, and Cmdr. Lachelier left to consult the California bar to discover whether, as with the concerns of Lt. Cmdr. Kuebler, Major Tom Fleener and Lt. Col. Broyles, her license will be at risk for representing someone who fired her, the time was clearly ripe for a morale-boosting exercise by the authorities, which is where, I presume, the idea for the statement about televising the 9/11 trials arose.
What makes the announcement particularly premature is that those who have been studying the Commissions' recent progress -- or lack of it -- know that the major obstacle preventing even the pre-trial hearings of Khalid Sheikh Mohammed and his alleged accomplices from proceeding is the fact that they do not yet have the required legal representation. Just last month, Col. Steve David, the Commissions' chief defense lawyer, explained that, unlike the prosecution, which has a full roster of 30 lawyers, he has only nine lawyers on duty, who are already struggling to cope with their caseload.
It was, however, also ironic that the military's announcement almost immediately backfired when one of the few military lawyers assigned so far -- Navy Capt. Prescott Prince, who was recently appointed to defend Khalid Sheikh Mohammed -- added his own criticisms of the Commission process to the ever-growing list of insider complaints. As Reuters described it, Capt. Prince "said he doubts the defendants can get a fair trial in the GuantÃƒÂ¡namo court because it accepts hearsay evidence that may have been obtained through cruel and dehumanizing means," and also pointed out that the Geneva Conventions ban "acts of violence or intimidation."
He also explained, in Reuters' words, that, "if the trials are indeed fair, then broadcasting them widely would prove that to the world, but he worried about setting a precedent by televising what he suspects will be show trials," and added, "I can just imagine American soldiers and sailors and airmen being subjected to similar show trials worldwide."
With his talk of show trials -- and his fears that members of the U.S. military are liable to be subjected to U.S.-influenced show trials in future -- Capt. Prince joins an ever-growing list of military defense lawyers who understand that the Military Commissions are both unjust and counter-productive. It is time to shut the system down and move trials to the U.S. mainland.