CommentaryAaron Zisser [Human Rights Fellow, Human Rights First]: "The first week of the first trial at Guantánamo Bay did not seem, at first glance, particularly extraordinary. True, there were some obvious differences between civilian courts and the military commission [Human Rights First backgrounder] courtroom hosting the trial of Salim Hamdan, accused of serving as a driver, bodyguard and weapons runner for Osama Bin Laden. Military guards stood at the doors, and some of the lawyers and all of the "jury" members wore military uniforms. But these features do not automatically diminish a court's legitimacy. Human Rights First and other organizations have long recognized these cases could legitimately be tried — and should be tried — either in civilian federal courts or in the well-established, and well-respected, regular military court-martial system that operates under the Uniform Code of Military Justice (UCMJ).
It was the familiar features, rather, that somehow stood out more and risked lulling a public far removed from the courtroom into a false sense of vindicating justice. A friendly, sometimes jocular judge wearing a black robe over his military uniform — U.S. Navy Captain Keith Allred — deliberated over legal questions, issued written opinions that cite to legal standards, and at times reprimanded government prosecutors for delays. Fancy wooden tables and wood paneling on the walls gave the place a tone of importance and authority. A gallery for observers and media was as sparsely populated as many courtroom galleries in the United States — for different reasons, of course; in Guantánamo the sparse attendance is due to the intentional isolation and inaccessibility of the courtroom — and a sketch artist's strokes scratched amid a respectful silence. The lawyers even sometimes said, "Objection!"
The Chief Defense Counsel for the military commissions, U.S. Army Colonel Steven David (in civilian life a veteran state court trial judge in Indiana), remarked outside the courtroom during this first week of trial that it is true that things appear normal at Guantánamo "from 20,000 feet." Once you get closer, he meant to say, the problematic differences between "Guantánamo justice" and the justice he and other veteran American jurists and lawyers know come into sharper focus.
While I appreciated the metaphor and was impressed with Colonel David's passionate arguments against the military commission system, it is clear that more than swooping down from 20,000 feet is needed to see all the problems in the courtroom overlooking "Camp Justice" — it takes both a magnifying glass and a time machine. And both reveal a system that lacks legitimacy, transparency, and fairness. Our commitment to these values and to due process and the rule of law, and our need for real justice, are in profound conflict with the artifice I witnessed last week.
Ironically — in light of the fact that Hamdan's is the first military commission trial the government actually has managed to get underway, after six years of effort — the regular civilian legal system we have developed over the course of hundreds of years, while imperfect, has nonetheless ably handled well over a hundred international terrorism cases, most within the last fifteen years. This familiar system has worked without compromising either national security or the values that gained their earliest and central expression in core provisions of the Bill of Rights. These values deliver justice to victims while also protecting accused against whim, caprice, and abuse throughout the criminal process. The system in Guantánamo pays lip service to these concerns, but has nonetheless surreptitiously infected every step of the process with layers of abuse that have resulted in a one-sided contest lacking both legitimacy and credibility.
The stage thus was set long before Hamdan ever entered the courtroom. While some key issues languished and bled into the trial itself, most of the questions related to Hamdan's fundamental rights had already been resolved — as a matter of policy when the military commissions were devised, or as legal questions addressed by Judge Allred in pretrial proceedings. The Military Commissions Act (MCA) [pdf] and the Rules for Military Commissions [pdf] that followed establish rules of evidence and procedure for these proceedings that deny important protections for the accused and grant the judge extraordinary discretion. The evidence mustered by the government was gathered in a way that denied fundamental rights long considered a given. And the government held close mountains of relevant information sought by the defense months ago, even until the very last minute. The first week of trial betrayed the complex deception underlying the bells and whistles that give the process a superficial gloss of legitimacy. It both manifested the sometimes near-invisible culmination of abuses that took place over the last years and presented the opportunity for fresh human rights violations.
First, under the MCA — which at various turns conflates, distorts and contravenes traditional American criminal law and the laws of war — coerced testimony is admissible, so long as it is deemed reliable, sufficiently probative and not the result of treatment amounting to torture (or, if elicited after December 30, 2005, treatment amounting to cruel, inhuman or degrading treatment). In contrast, coerced statements are never admissible in ordinary U.S. courts — including regular courts-martial — not only because they are understood to be inherently unreliable, but also because coercion is so fundamentally contrary to the values of a civilized society. The MCA attempts to dress up coerced evidence by providing a standard ostensibly based on concepts — "reliable" and "probative" — that sound positive enough. In Hamdan's trial, Judge Allred even excluded statements resulting from coercion that occurred during some interrogations in Afghanistan, but admitted videos made of Hamdan's initial interrogations shortly after his capture. Those videos show him taken into a dark and dank room with a bag on his head, seated on a dirt floor, and surrounded by armed soldiers, having to ask permission even just to adjust his sitting position. The deception here is that the judge admitted these statements without any probing assessment of the nature and effect of the coercion.
Second, I watched hours of testimony by a parade of FBI agents saying almost nothing more than characterizations of statements Hamdan made to them without knowledge that his statements would be used against him in a criminal prosecution and without any access to counsel. The FBI agents who investigated Hamdan's alleged crimes and testified last week had been affirmatively directed by their superiors not to advise him or other Guantánamo prisoners of any right against self-incrimination — they were told that their investigation was an "intelligence operation" rather than a criminal investigation — notwithstanding that they have routinely issued rights warnings in every place (including the locales of some of the most serious terrorist attacks on U.S. targets ever, such as the 2000 bombing of the USS Cole in Yemen) they have ever investigated international terrorism, except Guantánamo.
While Judge Allred expressed doubts about this argument — the interrogations at Guantánamo took place months if not years and thousands of miles from any battlefield where tactical intelligence would be useful and eliciting such information urgent — he nonetheless admitted evidence elicited during Guantánamo interrogations that were not preceded by any advisement of rights against self-incrimination. The judge said this was because Hamdan and the other Guantánamo prisoners have no rights — not just on a battlefield, but even after they were moved to Guantánamo — against self-incrimination: Notwithstanding the recent Supreme Court decision in Boumediene — which held that Guantánamo prisoners have the constitutional right to challenge their detention through habeas corpus petitions — Judge Allred held the Fifth Amendment simply does not apply to these prisoners.
Third, the government gave itself the power to choose whether and when to disclose important discovery materials to the defense. Disclosures of hundreds of pages of long-sought documents literally on the eve of trial forced the defense to spend precious time trying to conduct discovery even as they conducted the trial. Defense counsel could have conducted investigations as to Hamdan's confinement that might have justified the exclusion of evidence tarnished by particularly coercive conditions. But the defense had the time neither to conduct such investigations nor to assemble adequate legal arguments on the basis of a thorough review. Similarly, until the weekend before trial began, the government had kept even Hamdan's military defense attorney (who has the requisite security clearance) away from Guantánamo's high-value detainees (HVDs), such as alleged 9/11 mastermind Khalid Sheikh Mohammed. The defense hopes these HVDs will testify that Hamdan was not involved in planning, organizing or executing terrorist activities with which several of the al Qaeda HVDs are charged. The judge's mild reprimands disguised the severe disadvantage that these delays caused for the defense.
Even the last moments before the formal trial began witnessed further conflicts inherent in this invented system. Commission "members" — the jurors in the military commission trials — were selected from a pool of thirteen officers handpicked by the government, and only four of the six impaneled members must find guilt in order to convict. In these respects the commissions are no different from a regular court-martial. But the nature of the 9/11 attack — an attack on the Pentagon — makes this different. Several members of the officer pool had direct, personal connections to colleagues working in the Pentagon on September 11, 2001, or serving on the Cole in October 2000 — that is, personal connections to victims of these attacks. The Hamdan defense was forced to use a peremptory challenge to exclude a potential juror who knew both a victim of the attack on the Pentagon and the commander of the Cole at the time it was attacked. Yet it is other officers with such personal connections to these events who will be sitting in judgment of a man accused of supporting the masterminds of these very attacks.
Some observers have suggested that Salim Hamdan is a "guinea pig," allowing the government to try out its military commissions before running the more important defendants through it. But it appears Hamdan is a guinea pig in an experiment in deception, not an experiment in justice. In either case, this experiment — which we never needed — is failing."
"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First
