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An Insider's View of Gitmo This Week

Anthony D. Romero,
ACLU Executive Director
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December 10, 2008

I just stepped off an airplane from Gitmo last night and thought it would be a good time to offer an insider’s take on what really happened down there this week. Unlike the many stories that have been in the press, what follows is a view from the defense table that provides a fuller perspective on the proceedings than what’s been reported.

As you might know, the ACLU has, along with the National Association of Criminal Defense Lawyers (NACDL), created the John Adams Project, through which we have sponsored expert civilian counsel to team up with the military defense lawyers representing the 9/11 defendants. It’s part of our ongoing struggle to bring a modicum of fairness to these sham prosecutions and to get Guantánamo shut down for once and for all.

As I write this today our struggle to shut Gitmo and shutter the military commissions is far from over and is anything but a fait accompli.

You probably read in the papers that on Monday, all five defendants expressed an interest in entering guilty pleas in the 9/11 case.This wasn’t unexpected news to anyone, as they essentially expressed that viewpoint from the very first hearing in June of this year.

What did change was that the defendants have been meeting as a group since the last hearing. They have recently asked to have all pending law and evidentiary motions withdrawn and that they be allowed to proceed to enter guilty pleas and be sentenced to death. All five men submitted a handwritten motion to the military judge on November 4, 2008 (Election Day) stating that this is how they would like to proceed.

However, like so much in this made-up system, the process for how this might happen is not clear.

First, the defendants have to formally enter guilty pleas, which they did not do for reasons I will explain below.

Second, the military judge has to accept the pleas, but only after an extensive round of questioning and a review of the evidence that supports the entry of those pleas. In normal courts, this process is known as “allocution” and even in these fundamentally flawed commissions, it is hard to imagine any judge accepting guilty pleas in capital cases without undertaking this second stage with rigor and care.

Third, a panel of 12 jurors (most likely military officers) would have to be convened, and they would have to render a unanimous decision in order for the death sentence to be applied.

None of this happened this week. Why?

First, two of the five defendants do not represent themselves.They were not allowed to represent themselves, as there were questions about their intentions and their competency to knowingly and voluntarily waive their right to counsel. One of them, Ramzi bin al Shibh, had been placed on psychiatric medication against his will. The issue of competency is also being raised in the case of Mustafa Ahmed al Hawsawi. These two defendants are still represented by JAG lawyers and by civilian counsel from the John Adams Project. In fact, Jeff Robinson from our John Adams Project did an outstanding cross-examination of Brig. General Thomas Hartmann on the unlawful command influence motion that did not garner any press attention. Legal and evidentiary motions on behalf of bin al Shibh and al Hawsawi have NOT been withdrawn and we expect continued back and forth with the government until issues of their competence have been resolved. Only then could Judge Henley allow them to represent themselves and move to the next stage of entering pleas.

Second, three of the five defendants who do represent themselves (although we are still stand-by counsel for all three) changed their mind from the morning to the afternoon on Monday as to whether they wished to formally enter guilty pleas this week. Ironically, there is a conflict between the rules and the discussion section of the Military Commissions Act that leaves it unclear as to whether the death penalty could attach in an instance where guilty pleas are entered. In other words, if they plead guilty it is not clear they could be executed (“martyred” in their minds). When Mr. Mohammed learned this at lunch, he did a turn-around and said that he was not willing to enter pleas that day until he gained clarity from Judge Henley on this issue.

Third, after the defendants understood that if the pro se defendants proceeded separately without resolution of the other two who are still represented by counsel, the five cases would not continue to proceed together. The idea that moving ahead on Monday on three pleas would essentially leave their other two “brothers” (as Khalid Sheikh Mohammed put it) behind made them reconsider their decision, much to the consternation of the prosecutor and the military judge.

While these events have the potential to impact the nature of the John Adams Project’s involvement, we are not giving up. As I explained, two of the five defendants are still directly represented by the JAG and John Adams lawyers. Although Khalid Sheikh Mohammed did fire his JAG lawyer, Captain Prescott Prince, by the afternoon he had welcomed ACLU lawyer David Nevin back to the counsel’s table, was conferring with him, and was receiving input from him in open court. As in many capital cases, lawyers often encounter an on-again/off-again dynamic with clients — even more so with those who have been tortured and waterboarded.

This is far from over. Guilty pleas have not been entered or accepted, and sentencing is a ways off. What we have done by providing expert civilian defense counsel is ensure that the worst case scenario (entering of pleas, acceptance of pleas, and sentencing in a system void of due process) did not happen in the remaining days of the Bush administration. Without the ACLU and NACDL’s involvement, I can immodestly speculate that those events almost certainly would have happened this week.

What happens next?Well, who can ever say about Gitmo? The judge has set up a briefing schedule on the above issues that requires the last response motion from us on January 4, 2009. It seems like a long-shot that he would set up a hearing to hear the pleas, accept them and sentence the defendants before Inauguration Day, but no one can say with certainty. What is most likely is that this is all dropped in the lap of a new administration. Putting the pressure on the Obama administration to shut down Gitmo and the military commissions right away as he promised is our top priority, since the further this process goes, the harder it may be to stop it entirely. Monday’s Washington Post piece does a good job of exploring this conundrum for the Obama team. Notice the “no comment” from the transition team.

Finally, what was most difficult for all of us at Guantánamo was hearing the 9/11 family members who were down there say that they were proud of America and the way in which the defendants were being afforded justice.They are earnest, well-intentioned people who suffered a great loss, and I can only imagine the mix of emotions that they were feeling as they were sitting in the courtroom alongside of us.But the fact is that their grievous loss and hope for justice does not fix the fact that this commission process is NOT the best example of American justice, as it is a system that allows hearsay, coerced confessions and evidence gleaned from torture and waterboarding.

There are other 9/11 family members who share our views, 24 of whom issued a statement to that effect today, and some whose individual statements are on our website. Nothing changes the basic fact that this system changed the rules of tried-and-true systems of justice (whether civilian or military), and while the military commissions may look, smell and feel like a real court of law, they are not. No court of law would allow individuals who were tortured with the express approval of top government officials to be put to death when their mental health status is still in question.

That’s why we’re sticking with this case, and that’s why we ask for your support.

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