This week, I've been in Guantánamo Bay observing a hearing in the first capital case before this latest iteration of military commissions, that of Abd al-Rahim Hussayn Muhammad al-Nashiri. As the hearing has progressed over the last few days, a recurring theme has surfaced: the military commission system will not provide basic legal protections inherent in every other American courtroom. But, the prosecution says, in essence, not to worry: even with these protections swept aside, you can trust us to do the right thing. As I wrote yesterday, the prosecution — and perhaps the judge — does not believe the Constitution applies to Guantánamo prisoners. Chief Prosecutor Brig. Gen. Mark Martins emphasized in a press conference yesterday that the Guantánamo military commissions will be held consistent with our country's values — but apparently just not our constitutional values. In court, Judge James Pohl similarly seems to follow a loose notion of "fundamental fairness" but has so far refused to ground that notion in constitutional law. But trust us.
Gen. Martins has been giving speeches across the country insisting that the military commission system is fair, transparent, and independent. Saying it is so does not make it true, and what I have observed this week is a system that is far from fair, transparent and independent. And if the proceedings truly embodied such principles, surely such a public relations campaign would hardly be necessary.
Yesterday's proceedings involved questions about discovery — whether the defense should be allowed to see evidence in the government's possession regarding Mr. al-Nashiri — and the resources that would be provided to his defense team. Under the commissions' rules, once a judge decides the government can withhold classified evidence from the defense, the defense can never ask the judge to reconsider his decision, no matter what comes out as the case progresses. Mr. al-Nashiri's defense lawyers argued that such a scheme was unconstitutional; it is unique to the military commissions because the Classified Information Procedures Act, the law that governs the use of classified information in federal courts, does not contain this prohibition. In fact, the federal judge in the Scooter Libby trial allowed reconsideration of just such a decision. Judge Pohl was unwilling to reject the unfair rules as unconstitutional, but offered an ad-hoc workaround that relies not on rules or procedure, but entirely on his discretion. Under his scheme, the defense will not be allowed to ask the judge to reconsider his ruling. Rather, Judge Pohl will allow the defense to file — at a later date — an amended theory of how it will defend Mr. Al-Nashiri's case and thus make the argument that the previously withheld evidence is necessary to the defense. At that point, the judge could decide on his own whether he should reconsider his prior ruling. Trust us.
The court then turned to the defense's funding requests. In the military commissions system, defense counsel must seek resources to prepare its defense through the Convening Authority — a political appointee nominated by the Secretary of Defense to be the final word on charges, select a chief judge (Judge Pohl), appoint the chief prosecutor and hand-pick the jury pool. The defense requested resources to have the evidence given to it by the government — or at least portions of it — translated into Arabic for Mr. al-Nashiri, who cannot read English. The Convening Authority denied the request. When the defense asked Judge Pohl to order the translation services yesterday, he also denied it, saying Mr. Al-Nashiri had no right to read the evidence against him. In other words, Mr. al-Nashiri is not entitled to the translation of evidence that the government may use to take his life.
The defense also sought funds from the Convening Authority for an investigator to travel to Yemen — where the bombing of the USS Cole took place. The Convening Authority denied that request too. The defense took it up with the judge. Though none of the defense lawyers speak Arabic or are able to travel freely to Yemen, the prosecution also opposed the funding for the investigator and even questioned the qualifications of the investigator the defense has chosen. Given that the government has been investigating the alleged offense and Mr. al-Nashiri for over 11 years, with multiple agencies and the military at its disposal, its opposition to funding for the defense to send a temporary investigator to Yemen was outrageous.
As a capital defense attorney with the ACLU's Capital Punishment Project, regularly representing indigent defendants facing the death penalty in courts across the country, I know that such opposition would never be permitted in federal or state courts. The United States Supreme Court recognized long ago that an indigent defendant has a constitutional right to seek resources for his defense before the judge alone, without the prosecution weighing in. To have it otherwise would reveal defense strategy and give the prosecution an unfair advantage. The government, of course, never has to ask permission from the judge when it needs resources — and the defense would never have an opportunity to question the government's investigative decisions. Nor is the government restricted in the resources at its disposal. As Gen. Martins admitted yesterday at a press conference following the hearing, even in tough fiscal times, the budget for Guantánamo prosecutors is virtually unlimited. And there is little doubt that the U.S. government spent whatever it needed to spend to investigate the bombing of the USS Cole.
Fortunately, despite the government's opposition, the judge agreed that such an investigator was necessary. However, under military commissions' rules, the Convening Authority, who actually cuts the checks, is not bound by the judge's ruling. So, it is still far from clear whether the defense will actually get to hire the investigator. But, trust us.
This has been my first trip to Guantánamo, but in talking to other legal observers, members of the press, and Office of Military Commission personnel, many changes are underway here, as the base prepares for commission proceedings to come — not only in Mr. al-Nashiri's case but in the case against the alleged 9/11 perpetrators. Over 100 people connected to the Guantánamo commissions flew down with us early this week for Mr. al-Nashiri's proceeding alone. In anticipation of the 9/11 proceedings, the base is making efforts to make its visitors more "comfortable." But let's be clear: from a legal and fairness perspective, there is nothing comfortable about the military commission system at Guantánamo.
We should place our trust in an independent, open, and fair system, grounded in the Constitution — like our federal courts. Trusting political — or simply fallible human — players to "do the right thing" is an experiment that history has repeatedly rejected.