Trials Set To Begin For Four at Guantanamo
Process Differs From U.S. Justice System
By Scott Higham
Washington Post Staff Writer
Monday, August 23, 2004; Page A01
Special military trials for four prisoners charged with al
Qaeda activity will start in this building at the Guantanamo Bay naval base in
Cuba. (Pool Photos Mark Wilson)
Four suspected al Qaeda terrorists will face military trials this week at the
Navy base in Guantanamo Bay, Cuba, in historic legal proceedings that have not
been conducted by the U.S. government since World War II and are unlike
anything most Americans face in the criminal justice system.
Hearsay evidence will be allowed. Conversations between defendants and lawyers
can be monitored in some circumstances. Exculpatory evidence can be kept
secret from suspects. And appeals will go to a panel selected by the same
government official who helped establish the commissions: Defense Secretary
Donald H. Rumsfeld.
Special military trials for four
prisoners charged with al Qaeda activity will start in this
building at the Guantanamo Bay naval base in Cuba. (Pool
Photos Mark Wilson)
Military defense lawyers and human rights activists have condemned the
proceedings as "fundamentally unfair."
But Bush administration officials say they are doing the best they can to
balance the nation's security interests against due process rights. They say
they have incorporated key elements of the U.S. justice system in the military
commissions: Suspects are presumed innocent until proven guilty. They do not
have to testify. Guilt must be established beyond a reasonable doubt. The
suspects have been afforded free counsel.
"We want to get this right," said John D. Altenburg Jr., a retired
Army major general who is supervising the commissions.
Initial hearings are scheduled to begin tomorrow in a tall, T-shaped yellow
building that overlooks the waters encircling Guantanamo and its sprawling
prison, which has become the epicenter of the administration's war on global
terror. Military officials said prosecutors and the commissioners will not
discuss the cases and are requesting that their names be kept secret for
security reasons. Legal analysts say few new details about the four suspects are
likely to emerge, but military lawyers for the alleged terrorists are expected
to attack the legitimacy of the commissions and the impartiality of the officers
selected to hear the cases. They are also expected to question the rules and
procedures of the commissions as well as the charges brought against their
clients, according to motions filed last week.
The courtroom, framed by blue velvet curtains and flags from the armed forces,
has been secured and swept by teams of bomb-sniffing dogs amid heightened
security operations at Guantanamo Bay. Reporters and human rights activists
permitted to attend the proceedings are not allowed to move between buildings on
the base without military escorts. A courtroom sketch artist will not be
permitted to portray the faces of the commission participants, including the
defendants. Television cameras are not permitted in the courtroom, and
videographers must clear videos of exterior shots with security officers.
Despite criticism that the commissions do not follow internationally accepted
rules of law or procedures commonly used in military courts, U.S. officials
pledged yesterday that the Guantanamo Bay trials will be fair. Prosecutors said
they are ready as early as Sept. 28 to begin the main part of the case against
one of the suspects, an Australian citizen named David Hicks.
"Each of the accused will be given full and fair trial in a manner that
protects our national security," Navy Lt. Susan M. McGarvey, a spokeswoman
for the commissions, told reporters at the Navy base yesterday.
Defense attorneys assigned to the cases say the composition of the commissions
and their rules and procedures will make it difficult, if not impossible, for
their clients to get fair trials. They also say the president, the secretary of
defense and the attorney general have all proclaimed publicly that the
defendants are terrorists and the "worst of the worst,'' statements
possibly prejudicing the military officers who will serve as jurors.
"Most people are extremely hostile toward terrorists and I understand that,
but people should worry about this," said Navy Lt. Cmdr. Philip Sundel, a
military attorney assigned to defend one of the suspects. "These
commissions are a lie behind the claim that all men are created equal, that we
are innocent until proven guilty, that we as a society believe in the rule of
law above all else."
President Bush issued an executive order Nov. 13, 2001, reviving a military
justice system that has not been used in nearly 60 years. Bush said the
commissions, which have been used to try the Lincoln assassination conspirators,
Nazi saboteurs and Japanese war criminals, would permit the government to use a
blend of secret and public hearings to try foreigners charged with committing,
threatening or aiding terrorist acts.
What has emerged during the past 33 months is a military justice system that
borrows heavily from commissions of the past with a few modifications, but is
also a work in progress. Critics of the commissions say they are fraught with
potential conflicts, such as permitting the presiding officer, who will serve as
a judge of sorts, to take part in the deliberations over guilt or innocence.
"Structurally, I think there are serious questions," said Eugene R.
Fidell, a Washington lawyer who specializes in military legal issues. "This
is not the military justice system. . . . It's an antique that's being rolled
out of a museum case."
Trials Set To Begin For Four at Guantanamo
The administration relied on legal experts to help craft rules and procedures,
including former FBI director William S. Sessions and former White House
counsel Lloyd Cutler, who served Presidents Jimmy Carter and Bill Clinton.
Still, the evolution of the commission process has been marked by fits and
starts. With the first hearings days away, rules, procedures and the roles of
the key players are still being refined, military law experts say.
"Everyone is struggling to figure out what the rules are," said
Kevin Barry, a retired Coast Guard captain who now heads the National
Institute of Military Justice. "These rules have been kind of made up as
they go along."
Military defense lawyers assigned to the case called the commission process
"confusing" and "ad hoc."
Navy Lt. Cmdr. Charles Swift, a career officer, was serving as the chief of the
Navy's legal service office near Jacksonville, Fla., in spring 2003 when he
received a call requesting that he represent a suspected terrorist held at
Guantanamo Bay. Swift accepted and moved to Washington. The first sign of
confusion came the day he arrived for work. He said he was told to go home
because "some wires got crossed" and the selection of defense
attorneys was "premature." Swift said his supervisor asked him to
remain in Washington while he tried to clear up the confusion.
Swift said he stayed, but instead of working as a defense lawyer, he was
assigned to be a "staff attorney" for the military. Swift, Sundel and
the other defense attorneys objected, saying they should not be put in the
position of working for an office that would be coordinating the cases against
their eventual clients. "It was an ethical conflict," Swift said.
The Pentagon eventually assigned Swift a client: Salim Ahmed Hamdan, a taxicab
driver from Yemen who worked as a chauffeur for Osama bin Laden. Prosecutors
allege that Hamdan ferried weapons for bin Laden's terror network and helped the
al Qaeda leader escape after several terror operations, including the Sept. 11,
2001, attacks. Swift said his client was a low-level driver who cooperated fully
with interrogators and had nothing to do with the planning or execution of any
Swift said he and his colleagues were troubled by the commission rules that were
being drafted and the indefinite detentions of their clients at Guantanamo Bay.
Swift, Sundel and three other active-duty military lawyers filed a
friend-of-the-court brief with the U.S. Supreme Court last January, challenging
their commander in chief's orders that suspected al Qaeda terrorists and Taliban
fighters could be held without review from the federal court system. This summer
the Supreme Court ruled that detainees at Guantanamo could have access to
federal courts, and legal analysts say that ruling extends to those who have
been designated to stand trial before the commissions.
So far, Bush has designated 15 detainees as eligible for trial before the
commissions. The four who have been formally charged will have their initial
hearings this week. In addition to Hamdan, they are: Ali Hamza Ahmed Sulayman al
Bahlul of Yemen; Hicks of Australia; and Ibrahim Ahmed Mahmoud al Qosi of Sudan.
Hamdan, al Bahlul and al Qosi are charged with conspiracy to commit war crimes.
Hicks faces additional charges of attempted murder by an unprivileged
belligerent and aiding the enemy.
In some cases, detainees at Guantanamo Bay have been held for more than two
years. Swift hired a psychiatrist to evaluate Hamdan's mental condition because
he was being held in isolation at Camp Echo, a collection of secluded
cinderblock huts off limits to most visitors on the Navy base. "The
conditions of his confinement make Mr. Hamdan particularly susceptible to mental
coercion and false confession," the psychiatrist wrote in a court filing.
Human rights groups argue that those conditions, in addition to interrogation
techniques used to extract information from detainees, could result in coerced
confessions and false statements that could be introduced during the military
commissions. They also say some suspects may not be competent to understand the
charges against them.
"Military commissions do not require that someone be competent to stand
trial," said Avi Cover, a senior associate for Human Rights First, a New
York-based advocacy group. A representative from Cover's group will be among the
advocates attending this week's proceedings and, along with the journalists, had
to agree to strict military ground rules, which include prohibitions on
disclosing classified material and information that "may endanger the
physical safety of participants in commission proceedings."
In June, the military lawyers complained to two U.S. Senate committees about
possible coercion. "It is likely that evidence obtained from prisoners
abused while in U.S. custody will be introduced as evidence in these military
commissions at Guantanamo Bay, and that neither defense counsel nor the members
of the commissions would ever be told about the circumstances under which such
evidence was obtained," the lawyers wrote the Senate Armed Services and
Altenburg, who is supervising the commissions, said he expects that issues of
coerced testimony will surface during the trials and will be addressed by the
presiding officer, retired Army Col. Peter E. Brownback III, who will decide
whether such statements should be admitted as evidence.
"I think that that will be an important issue in at least some of the
trials," Altenburg said. "I say that because to the extent that
evidence presented by the prosecution is statements made by accused persons, you
know, the issue of the nature of the interrogation will be critical."
Critics of the military commissions say the combination of perceived
shortcomings in the process will be seen around the world as another sign that
the U.S. government believes it can operate under different legal standards.
They warn that the indefinite detentions at Guantanamo Bay, coupled with the
decision not to apply the Geneva Conventions to certain detainees and the abuses
at the Abu Ghraib prison in Iraq, could have consequences for the men and women
in the U.S. armed forces.
"This process is compromising our credibility," said David P. Sheldon,
a former Navy appellate defense attorney who specializes in military law in
Washington. "The individuals who will suffer and pay the price are not just
the people being accused of these crimes. It's the citizens and the soldiers who
will undoubtedly feel the wrath of people who will likely impose a similar type
of grave judgment without regard to due process. If we don't play by the rules
of the international community and respect human rights, then why should the
rights of our soldiers be respected?"
Altenburg, the supervisor of the military commissions, has heard those arguments
before, but he said the defense lawyers and other critics are judging a legal
process that has not yet begun. He said the public will see that fair people
have been put into positions of authority in the military commissions, and fair
outcomes will be the result.
"I don't agree that we are setting a low bar," the retired general
said. "I think that much of the criticism is the result of not being there
yet. Once people see the professionalism of all the parties involved, I think
the criticism will subside. We really do have a fair system."