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High-Stakes Absurdity in Guantánamo

Hina Shamsi,
Director, ACLU National Security Project
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September 24, 2008

(Originally posted on Daily Kos.)

When the 9/11 defendants first emerged from years of torture and detention in secret CIA custody, it was for arraignment in a Guantanamo courtroom. The government immediately made it clear that any public mention of the prisoners’ abuse was off limits. The audio feed to the spectators’ room (where we observers and the media sit behind soundproof glass) was cut off any time a defendant mentioned being tortured. In today’s hearing, though, it was perfectly acceptable for Khalid Shaikh Mohammed to mention he was waterboarded (the government apparently realized it’s futile to censor what the head of the CIA himself admits).

But the security officer assigned to the court – presumably a CIA employee or contractor – cut off the sound, and a red light (quite literally) flashed in the courtroom, when Mohammed referred to a book by Richard Nixon. The government gives new meaning to “one step forward, two steps back.”

Former President Nixon came up during “voir dire,” a process in which counsel ask a judge questions to determine the judge’s ability to preside impartially and without bias over a case. Because Mohammed is representing himself, with military defense lawyers and attorneys from the ACLU’s John Adams Project advising him, he was able to participate. Mohammed wanted to know whether Judge Kohlmann’s religious affiliation would prevent him from being fair to the defendants. Mohamed noted that the U.S. considers him and his co-defendants to be “fanatic extremists” but he charged that the U.S. itself has its own extremist organizations. Mohamed said to Kohlmann: “If you were part of Jerry Falwell or Pat Robertson’s group, then you would not be impartial.” He went on: “Even former President Richard Nixon, in a book called —” at which point he was silenced. After close to two minutes in which we saw the courtroom as a mime, the sound came back and the judge explained that the audio feed was cut because the security officer had mistakenly thought that Mohammed was intending to address topics that could not be addressed in open court. We were left wondering what it was about a Richard Nixon book that was now presumptively classified. We’ll likely never know.

Today’s hearing was filled with such absurdities, some of which would have been comic if the stakes weren’t so high.

At various points, all we heard through the audio was gobbledygook. For example, at one point we heard “In the beginning of timing of lawyer, I say no difficulty, no situation, I can trust lawyer . . . I ask you previous about right to counsel. What can trust make decision on.” What sounded like a Star Wars character was actually a government-appointed interpreter translating into English questions Mustafa Ahmed al-Hawsawi had asked the judge about the consequences of representing himself. Poor translation has been a hallmark of the military commissions since 2004, when the ad hoc tribunals were first established. But it has reached new heights, with greater consequence, in these cases.

Al-Hawsawi’s defense lawyer, Major Jon Jackson, said at the end of the day that his client doesn’t understand about a quarter of the court proceedings because of incomprehensible interpretation. Al-Hawsawi’s civilian attorney, Nina Ginsberg, explained that because of shoddy interpretation, half of what Al-Hawsawi said to the judge about attorney-client confidentiality concerns, and concerns that he will not be able to obtain from the government documents related to his own torture, was unintelligible. All the defense counsel have asked that the proceedings be stayed until the government (whose responsibility it is) obtains competent interpreters. Failing that, they asked for the transcripts of each day’s proceedings to be made available in English and Arabic so that they can go over each day’s events with their clients and make corrections for the record. The government strenuously opposed the request, stating that it’s enough for the defendants to be present and observe the proceedings. As Jackson said afterwards, “I could not believe my government would not provide transcripts in the native language of the accused that it wants to put to death.”

Perhaps more seriously, Ramzi bin al Shibh was in court today and sat through the proceedings despite the fact that his mental competency – his very ability to be present in all senses of the word – is in question. He was persuaded to attend, it seems, by the notes his co-defendants sent the previous evening, urging him to attend voluntarily and to avoid being forcibly brought to court. To observers of his June 5th arraignment, he appeared considerably heavier; some speculate it could be a result of anti-psychotic medications.

Judge Kohlmann told bin al Shibh that he would be forcibly brought to court any time he refused to attend voluntarily until the question of his competency was resolved. (A competency hearing has not yet been scheduled.) Later, bin al Shibh’s military defense counsel, Commander Suzanne Lachelier, objected to the judge’s questioning her client about his legal rights when his ability to understand and exercise or waive those rights is in question: “While you were instructing him, Judge, he was reading the newspapers. I object.” The judge overruled her.

Moments later, bin al Shibh began to address the court: “She does not speak for me. She does not speak for me.” His voice was urgent, but measured at first. As he went on, he became increasingly agitated. Holding a piece of blank paper in the air, bin al Shibh added, “She says my mental state is not good. I have messages saying she wants to meet with me – why would she want to meet with me if my mental state is not good? That is not logical. She is a liar. I need a lawyer who would defend my interests against her.”

After his outburst, bin al Shibh remained quiet. Over the course of the day, he sometimes wore the earphones that allowed him to listen to the translation, but often took them off. It’s not clear if he, or any of the other defendants, fully understood what happened in court today.