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Report from Guantánamo: military commissions a failure in progress

Frank Kendall [volunteer consultant, Human Rights First]: "Last week I traveled to Guantánamo Navy Base as a monitor for Human Rights First. I observed pretrial hearings in the cases of Ibrahim Ahmed Mahmoud al Qosi, Ahmed Mohammed Ahmed Haza al Darbi, and Omar Ahmed Khadr. The ostensible goal of the military commissions is to provide fair trials for a subset of the Guantánamo prisoners being held as "unlawful enemy combatants." I must report that the commissions are not on the path to success. Success is probably not even possible under the Military Commissions Act (MCA) or the rules that implement it, but the hearings I attended convinced me that the implementation itself is also deeply flawed.

The three defendants whose hearings I observed were not the "high value" prisoners who were moved to Guantánamo in 2006. They are people who have been at Guantánamo for several years, since shortly after the detention facility was established. Mr. al Darbi, a 32 year old Saudi national, is alleged to have purchased a boat in the Middle East to use in a terrorist attack against shipping in the Straits of Hormuz. Mr. a Qosi, a 47 year old Sudanese national, is charged with being a security guard, driver and fighter with Osama bin Laden in Afghanistan up until the fight at Tora Bora. Mr. Khadr, a 21 year old Canadian citizen, is accused of killing an American soldier in a firefight in Afghanistan in June 2002 when he was age 15.

There are fairly detailed accounts of the hearings I observed at the Human Rights First and American Constitution Society websites. Here I would like to focus on two aspects of the military commissions: (1) the dilemma facing attorneys who are forced to represent clients against their wishes, and (2) the problem of military judges who lack power to enforce defendants' rights.

Three Guantánamo defendants have rejected their attorneys' representation and have said they will boycott the proceedings. Two of the three, Mr. al Darbi and Mr. al Qosi, did so while I was at Guantánamo. Now their military defense counsel must decide whether to refuse to participate in the proceedings, as their clients wish, or to provide a defense, as the MCA rules and their military orders demand. It is an ethical quandary. If their clients' strategy is to protest the legitimacy of the proceedings, how can the lawyers represent the clients' wishes and interests by acting in direct opposition to that strategy and mounting a defense in the clients' absence?

The two defense attorneys I saw and spoke with in Guantánamo are going to consult their state bars for ethical guidance. For military lawyers, this is not as simple as it might be for civilians. Military lawyers have to follow orders, and at least one military judge made it clear that this is what is expected (and what the MCA requires). One alternative for defense counsel is to sit in court without providing a defense (or, as one attorney put it, like "a potted plant"). Another alternative is for the military to "forum shop" for lawyers whose state bars will allow them to disregard their clients' wishes. Neither alternative makes for trials with the appearance or fact of adequate representation.

The second issue I referred to — which occurred to me during Mr. al Qosi's arraignment — was even more troubling. Mr. al Qosi appears to have refused to meet with or talk to his new defense counsel, Navy Commander Lachelier. Mr. al Qosi's first counsel, who had gained his trust and cooperation over a long period, has moved on to her next military assignment (another issue, but for another time). Cmdr Lachelier has repeatedly asked to meet with Mr. al Qosi in his cell or from outside his cell, but her requests have been denied for "security reasons." Now her only means of communicating with Mr. al Qosi and requesting an in-person meeting is through written notes. Her notes are delivered and read to Mr. al Qosi by the prison guards. She is only allowed to send one note a day and was told that more than one a day would be "harassing" Mr. al Qosi. Mr. al Qosi is permitted to provide a verbal response, which is relayed by the prison guards back to her.

Last week, Cmdr Lachelier asked the military judge to direct that she be given an adequate opportunity to communicate with her client in person so as to gain his trust. But the judge believed she had no authority to take corrective action. Her exact response was: "I do not have the authority nor do I desire to alter the security procedures. You will use the normal procedures."

Because the MCA is a new body of law, there is no precedent to guide judges as to their authority beyond the courtroom. There is no apparent reason why the judge could not have delayed the proceedings until those responsible for security devised a way to provide Cmdr Lachelier with access to her client. As an alternative, the judge could have required that Mr. Qosi be brought to a holding cell in the commissions building to meet with Cmdr Lachelier. It is difficult to imagine how a judge may conduct a fair trial and protect the rights of the accused when that judge lacks the authority to ensure that the defendant's rights are enforced.

If the people who set up the military commissions believed that they would provide even the appearance of fair trials, then they have a lot to be worried about. If they believed that the military commissions would in fact provide fair trials, then that would seem to be a prospect without hope."

"Report from Guantanamo" features regular contributions to JURIST Hotline from Human Rights First.

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