Jamil Dakwar,
Director, ACLU Human Rights Program
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May 22, 2008

Yesterday, another Guantánamo military commission ended in a fiasco when Mohammed Kamin declared he would boycott the proceedings. Kamin, a 30-year-old prisoner from Afghanistan, has been in U.S. custody since May 2003; today was the first time in five years that Kamin was exposed to the outside world. Kamin told his military judge, Air Force Col. W. Thomas Cumbie, that he does not want a lawyer — any lawyer — and that he does not want to represent himself either. This is not the first, and, if the current pattern continues, will not be the last boycott announced here. (Kamin is the sixth prisoner to boycott the proceedings, or decide to represent himself, or reject any U.S. military-appointed attorney, before the military commission). When I first observed the military commission hearings back in 2004, the question among observers was who would be the first Guantánamo prisoner to boycott the commissions. Today, however, the question is who will be the prisoner who does not boycott the new system created under the Military Commissions Act of 2006, an act which all but guarantees an unfair process.

The drama of the day started outside the courtroom. We were notified that the hearing would be delayed because the detainee had not yet arrived at the commission building from the detention camps, an area that is off-limits to human rights observers. We later learned that Kamin was forcefully brought to the court to attend his arraignment, and that the military judge had authorized his involuntary appearance before the commission in what he called "forcible extraction." (Under the rules of the military commission, a charged prisoner must attend his arraignment, but he can choose not to show up to later proceedings, in which case the trial will proceed in his absence.)

After more than two hours of delay, we were allowed into the courtroom, where we discovered that Kamin was already seated with his hands and legs shackled; three guards surrounded him. He was wearing an orange prison uniform — a sign that the military considers him to be "non-compliant" — but he was sitting quietly and listening patiently to what the judge had to say. It is unclear what happened to him, but we could see minor bruises on his face and his neck. In his opening remarks, the judge mentioned that Kamin had tried to spit at and bite one of the guards, but he did not provide any further details and did not inquire about Kamin's physical well-being.

In the course of the hearing today, it was revealed that Kamin has some mental health issues. His detailed military defense counsel, Navy Lt. Rich Federico, said that he learned of this only a day before the hearing. Mental health problems, unfortunately, are not uncommon at Guantánamo. Prisoners have been suffering from mental health and other serious psychological problems such as post-traumatic stress disorder; these problems probably stem from their indefinite detention, isolation from the outside world, torture and abuse. Just yesterday, the Justice Department's Inspector General released a long-awaited report addressing allegations of torture and abuse of detainees held by the U.S. at Guantánamo and elsewhere. The report cites concerns raised by FBI agents about the use of such abusive interrogation techniques.

The government alleges that, between January and May 2003, Kamin provided material support to al Qaida by spying on American forces and launching missiles. The charge sheet does not accuse Kamin of harming civilians or U.S. or other military forces deployed in Afghanistan. Throughout today's hearing, however, Kamin asserted in his native language, Pashto, that he is innocent, that he has no links to al Qaeda, and that all the allegations against him are false. Kamin said at his hearing that before his arrival in Guantánamo he was held in Bagram, the notorious U.S. military air base in Afghanistan. He also said, surprisingly, that he came to Guantánamo of his own free will. He explained that he made this decision after he was told that people at Guantánamo would help him. Soon after Kamin's arrival at Guantánamo, he realized that his situation had gone from bad to worse. He told his military lawyer that it was like moving from under the pouring rain to being placed under the gutter.

Today's hearing brought to the surface the ethical dilemma faced by military defense lawyers who are often dismissed by their clients and yet are ordered, at least temporarily, by the military judge to continue to represent them. Federico repeatedly told the judge that he does not have the authority to speak on behalf of Kamin and that his client should have the right to boycott the proceedings. Federico tried to convince the judge that the Military Commission Act of 2006 is not the only legal authority that applies to the proceedings. Indeed, the MCA is the source of the problem: As the old Russian saying goes, "this is where the dog is buried." It is the military commission system itself, created by the Bush administration to circumvent the Constitution and international law, that is causing this disarray. Today's hearing underscores the flaws in the system, which from Day One has been riddled with ethical and legal problems, including a lack of effective access to counsel; political interference; and admission of coerced evidence that may have been obtained through torture.

Tomorrow's hearing will likely be a rerun of today; Sudanese national Ibrahim Ahmed Mahmoud al-Qosi, who boycotted the proceedings last month, is scheduled to appear before the commission. His detailed military counsel has been struggling with the same legal and ethical issues as Kamin's lawyer. Still, the show must go on at Guantánamo at least until the November elections, or the Supreme Court's decision in Boumediene v. Bush. At issue in Boumediene is whether Guantánamo prisoners have the right to challenge their detention through habeas. A decision is expected by the end of June.

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