The events at today's hearing suggest distrust and suspicion from the handful of Guantánamo detainees who have been charged by the Bush administration toward the military commissions system. Guantánamo is a place where basic rights, like the right to effective access to counsel, which in a normal court is taken for granted, have to be fought for. Meanwhile, the U.S. government spends an enormous amount of resources constantly reinventing its skewed wheel of justice.
Ibrahim al-Qosi, a 47-year-old Sudanese man, is one of the six detainees who previously declared that he would not cooperate with his government-assigned lawyers . In doing so, al-Qosi stood up for his right to be represented by an attorney of his own choice to defend him against charges of conspiracy and providing material support to terrorism. He has refused to be represented by his detailed military defense counsel, Navy Reserve Cmdr. Suzanne Lachelier. He was adamant today about not compromising his fundamental right to counsel of his own choice and, after being held for over six years in Guantánamo, tested the system's ability to ensure it.
The lack of trust the detainees have towards the military commissions is not surprising. The U.S. government has isolated Al-Qosi and many other Guantánamo detainees from the world, denied them access to courts, and in many cases tortured and abused detainees. The underlying problem is that the military commissions were created to secure convictions, not to deliver justice as Americans and the world traditionally understands it. And it's not just critics from the outside who recognize this: a military commissions judge, in the case of Salim Hamdan , found this month that the system is subject to unlawful political influence. It also permits coerced confessions that may have been extracted by torture and secret evidence that a defendant does not have the effective ability to refute. The systemic flaws in the military commissions process have been recognized by no other than the former chief prosecutor at Guantánamo, Col. Moe Davis , who resigned in protest of unlawful command influence from his superiors at the Pentagon. Even Secretary of Defense Robert Gates told a congressional sub-committee last year that the military commissions are tainted and lack international credibility.
Despite his statement last month that he would boycott his military commission and refuse to participate in future hearings, al-Qosi attended today and found the military judge, Air Force Col. Nancy Paul, willing to hear his attempts to enforce his rights. At the start of his hearing, al-Qosi asked to be allowed to phone home, for the first time in over six years. He asked to directly contact his family in Khartoum, Sudan, so they could help him find a civilian lawyer he could trust. Once again, in a normal criminal justice process, access to family members and legal counsel is supposed to be made as promptly as possible and is considered a fundamental human right. But, Guantánamo, in Carl Schmitt's words, is a "state of exception" where the executive branch sees itself as exempt from the legal restraints to its power that would normally apply.
A decision whether to grant the call has yet to be made, but the military's Public Affairs Office (PAO) mistakenly told the press otherwise. The PAO told reporters that the request was granted, and that al-Qosi called home Thursday night. Press reports on yesterday's hearing ran last night, and it wasn't until this morning that the truth surfaced. The U.S. government should allow al-Qosi to call home via the Red Cross or the Sudanese mission sooner rather than later.
According to the rules of the military commissions, a defendant has the right to a qualified military defense lawyer free of charge and also the right to civilian counsel, but on his own expense. Al-Qosi told the judge that, having spent the last six years in detention, he could not make an informed decision on his own about choosing a civilian lawyer and needed to consult with his family and the Sudanese Bar. The problem is that communication from prisoners to their families and vice-versa may only be facilitated through the International Committee of the Red Cross or through the prisoner's foreign embassy and the State Department. The question on Thursday was, who would contact these entities? This question was made more complicated because al-Qosi is imprisoned and has refused representation from any government appointed lawyer. Judge Paul, pushing the system’s limitations, ordered the government to do whatever is necessary to facilitate contact between al-Qosi and his family.
Al-Qosi's decision to end his boycott of the proceedings reportedly came after a delegation from the Sudanese embassy in Washington visited him. This meeting occurred shortly after his first military commission appearance last month. The Sudanese diplomats were at Guantánamo to arrange the release of three other detainees from Sudan, including Al Jazeera TV network cameraman Sami al-Haj. According to al-Qosi, the Sudanese diplomats told him to appear before the military commission in order to request permission to contact his family so that they could arrange civilian legal representation for him.
Al-Qosi's next hearing will be on July 23. In the meantime, he agreed to allow his detailed military lawyer to contact the Red Cross to facilitate this call. It remains to be seen if he will ever actually get to call home.