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Guantánamo: Back to Square One
Editor's Note: You can listen to a podcast of Jamil discussing Thursday's hearing at Guantanamo here.
After close to five months of uncertainty regarding the future of the military commission system, hearings resumed today when Canadian national Omar Ahmed Khadr faced his third arraignment. That's right, his third arraignment. Clearly, the wheels of injustice turn very slowly at Guantanamo. Khadr, who is now 21 years old, was only 15 when he was captured by U.S. forces in Afghanistan. New charges against Khadr were filed for the third time last month after the old charges were thrown out in June by a military judge who ruled that the commission lacked proper jurisdictional authority to prosecute him. The military judge, Army Col. Peter Brownback, ruled that Khadr had not been designated as an "alien unlawful enemy combatant" as required under the Military Commission Act signed into law by President Bush in October 2006. Khadr is accused of murder, attempted murder, conspiracy, material support and espionage. Most of the charges relate to a 2002 incident in Afghanistan in which Khadr is alleged to have thrown a grenade, killing one soldier and wounding another. Khadr is one of only four captives at Guantanamo who were so far charged. Over 320 other prisoners continue to languish indefinitely without charges and no meaningful access to the courts. Today's hearing attracted close to 30 reporters, including several Canadian reporters and a Russian television crew that was broadcasting in Arabic! In addition to the five non-governmental organizations that have been granted status as permanent observers - the ACLU, Human Rights Watch, Amnesty International, Human Rights First and the Association of the Bar of the City of New York. In what appears to be an attempt to counter the largely critical contingent of human rights observers, the Pentagon invited three other groups to observe the military commission hearing: the Heritage Foundation, the Carnegie Council and the Veterans of Foreign Wars. As a matter of courtesy, the Canadian government sent a representative to observe the hearing.
A striking difference today from previous military commission hearings was the ongoing erection of a tent city just hundreds of feet away from the current Military Commission building. That building - the former home of a military dentistry - has become too small to accommodate the military commission staff. The Department of Defense had attempted to build a grandiose, $125 million court complex instead, but a successful ACLU lobbying effort stymied the plan, so the tents will have to do. Khadr appeared relaxed during his hearing today, but looked much older than his actual age. He wore a white Afghan-style dress and had a black religious cap over his head. He agreed to be represented by a military defense lawyer, Navy Lt. Cmdr. William Kuebler, who was joined by Department of Defense civilian attorney Rebecca Snyder and Canadian lawyer Nathan Whitling. To give more legitimacy to the proceedings, the prosecution - led by Marine Maj. Jeffrey Groharing - was joined by Assistant U.S. Attorney John Murphy. The prosecution was prepared to present its evidence regarding the designation of Khadr as an "alien unlawful enemy combatant" and said that it actually prepared documents and prepared as a witness an FBI agent who the defense could not depose. Of course, the prosecution was eager to move ahead with this trial, assuming that a slam-dunk determination by Col. Brownback that Khadr is indeed an "alien unlawful enemy combatant" was forthcoming - a ruling that would set a good precedent for subsequent cases that come before the military commission. Earlier in the week, however, at a non-public conference, Col. Brownback decided not to hear constitutional and international law arguments regarding the jurisdictional question. Mindful of a pending motion before the Court of Appeals in the D.C. Circuit, the defense team said they would reserve the right to bring substantive challenges at an appropriate time against the jurisdictional authority of the military commission to try Khadr, and emphasized that while they acknowledge the jurisdiction of the commission, they disagree and have objections which relate to his having been a child when he was captured and held as a prisoner of war. Finally, and perhaps the most interesting part of today's hearing, was the defense's voir dire inquiry: their attempt to question the impartiality of Col. Brownback. Col. Brownback was at times impatient with the questions presented by Lt. Cmdr. Kuebler. He was asked about a Supreme Court decision in the case against Salim Hamdan, another prisoner held at Guantanamo. The June 2006 decision struck down the old system of military commissions; during voir dire, Col. Brownback said he did not think that the Hamdan ruling found the military commission illegal. He instead stressed that the decision found that according to Common Article 3 of the Geneva Conventions, the President had to go to Congress to get authority for the military commission. His response was certainly not surprising considering his commission's legitimacy and his personal involvement in the old system was at stake. Col. Brownback also gave an unusual answer when he was asked what he knows about al-Qaeda. He said: "al-Qaeda is an organization or a group dedicated to the spread of Islam." It is quite disturbing that one would equate the spread of Islam with a group like al-Qaeda, which has been classified by almost the entire world community as a terrorist organization responsible for horrific crimes. Finally, Col. Brownback disclosed that he is friends with General John Altenburg, the convening authority of the military commission system since its inception in 2004. Despite the defense demand that he be disqualified for that reason alone, Col. Brownback decided to deny the request and found that he has no bias and is qualified to preside over Khadr's trial. Today's hearing was nothing more than another example of the lack of legitimacy and competency of the military commission system. As long as the independence and impartiality of the system is called into question, we will essentially remain at square one. Our only hope for fair trials and justice consistent with U.S. and international law lies in Washington, where Congress must find the political courage to stop this failed legal experiment. Epilogue: As part of the Pentagon's new ground rules regarding the status of human rights observers, we were denied access to the media center shortly after the hearing ended. As a result, we were denied access to critical information shared by the defense team with the press at a press conference. The defense lawyer revealed that the government has for years had secret evidence that could help Khadr defend himself. Prosecutors notified Khadr's military lawyer two days ago of the existence of "potentially exculpatory evidence" from a U.S. government eyewitness to the battle in Afghanistan that resulted in Khadr's capture in 2002. Tags: Col. Peter Brownback, Gen. John Altenburg, Guantanamo Dispatch, Human Rights Program, Lt. Cmdr. William Kuebler, Maj. Jeffrey Groharing, Nathan Whitling, Omar Khadr, Rebecca Snyder
A Tailor-Made Guilty Plea
It was an extraordinary, though typically chaotic, day at the Guantánamo Military Commissions. David Hicks began the proceedings with three lawyers sitting beside him at counsel table. After a series of dubious rulings by the trial judge, he ended the day with only one. Hours later, he agreed to enter a plea of guilty to a single charge of providing material support to a terrorist organization.
Hicks maintained, under questioning, that his guilty plea was unrelated to the loss of his attorneys, but the facts speak for themselves. Though not overtly coerced, Hicks's guilty plea was the product of a coercive system. And this outcome will do little to reduce the perception that the United States has created a result-driven system that is incapable of providing fair trials free of controversy. No Military Commission proceeding would be complete without a dispute about counsel that nearly derails the case. (See here, and here) Monday's proceedings stuck to the script. The judge asked Hicks whether he was satisfied with his attorneys. He said he was, except that he hoped to add additional lawyers and paralegals so as to achieve "equiality" with the prosecution. But precisely the opposite occurred. First, following a somewhat arcane discussion, the judge ruled preliminarily (while claiming not to) that one of Hicks's lawyers, Rebecca Snyder, could not represent Hicks, because she had been appointed by the chief military defense counsel but was not herself on active duty. This was wrong – and the judge allowed that he might revisit the issue after briefing -- but the result was the first empty chair at Hicks's table. Next, and far more troubling, the judge stated that Hicks's civilian defense counsel, well-known criminal defense attorney Joshua Dratel, had not submitted a letter indicating his agreement to comply with the rules and regulations of the Commissions, and therefore was not qualified to serve as counsel. Under Commission rules, a civilian lawyer must sign an agreement issued by the Secretary of Defense indicating that the lawyer agrees to abide by the Commission's regulations. The problem for the judge was that the Secretary of Defense had not yet created that agreement, and therefore Dratel could not sign it. Instead, the judge had created his own version of the agreement – thereby, in Dratel's words, "usurping the authority of the Secretary of Defense." Dratel would have signed even that version – so long as the agreement made clear that it applied only to regulations that already existed, and not to those (and there are many) that have not yet been issued. "I cannot sign a document that provides a blank check on my ethical obligations as a lawyer," Dratel explained. In simple terms, Dratel was unwilling to pledge compliance with rules that he had not yet seen. The judge was unpersuaded. "I find no merit in the claim that this is beyond my authority," he said. "That's sometimes what courts do, they find a way to move forward." Because Dratel refused to sign the agreement as written by the judge, he could not serve as counsel. There was a second empty chair. "I'm shocked," said Hicks, "because I've just lost another lawyer. Now I'm left with poor Mr. Mori." (Major Dan Mori is Hicks's very able military defense counsel.) This was followed by one of those almost-surreal moments that the Military Commissions routinely produce. The judge had just issued rulings that effectively deprived Hicks of two of his three lawyers. So he decided the time was right to address an issue of fundamental importance: Hicks's clothes. Hicks had arrived in court wearing beige prison attire. The judge said that he thought that a suit and tie, or business casual – which he helpfully defined – would be more appropriate. This practice was "designed to protect the presumption of innocence," the judge explained, because Commission members who observed the accused in prison clothing might be subconsciously prejudiced against him. Never mind that the President and former Secretary of Defense had already declared Hicks a guilty terrorist; that the Supreme Court had already once intervened to halt illegal proceedings under which he faced trial; that the events of the morning had left him facing serious charges with only a fraction of his legal team. The true threat to a fair proceeding had been identified, and Hicks was wearing it. It is against this backdrop that Hicks's decision to enter a plea of guilty must be understood. It is expected that Hicks's plea will result in his return to Australia within the next few months. He has been held in Guantánamo for more than five years. By his lawyers' and family's account, he has despaired of his chance of receiving a fair trial in this system, and the day's events hardly could have convinced him otherwise. He does not want to be a symbol of an unjust system. He wants to go home. We'll learn the details of the plea – and perhaps see Hicks formally sentenced – later this week. Tags: David Hicks, Guantanamo Dispatch, Joshua Dratel, Maj. Michael Mori, Rebecca Snyder |
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