[Ppnews] Hollow Gestures at Guantánamo

Political Prisoner News ppnews at freedomarchives.org
Mon Apr 21 19:53:31 EDT 2008

April 21, 2008

More Shameless Propaganda from the Pentagon

Hollow Gestures at Guantánamo


In what appears to be nothing more than 
propaganda masquerading as news, the US military 
has announced, as Reuters described it, that it 
will “televise the Guantánamo trial of accused 
September 11 mastermind Khalid Sheikh Mohammed 
and five other suspects so relatives of those 
killed in the attacks can watch on the US mainland.”

Army Col. Lawrence Morris, the chief prosecutor 
of Guantánamo’s system of trials by Military 
Commission, stated, "We're going to broadcast in 
real time to several locations that will be 
available just to victim families," adding that 
the footage would be “beamed to closed-circuit 
television viewing sites on military bases at 
Fort Hamilton in New York, Fort Monmouth in New 
Jersey, Fort Meade in Maryland and Fort Devens in Massachusetts.”

While there seems little doubt that Col. Morris 
is sincere, it’s also apparent that the trial 
under discussion will not be taking place anytime 
soon, and that announcements of broadcasts 
designed to appeal to the families of 9/11 
victims are premature, to say the least, and more 
judiciously regarded as attempts to shore up the 
disputed legitimacy of the Commission process.

Conceived by Dick Cheney and his close advisers 
in November 2001, as an alternative to either the 
US court system or the US military’s own judicial 
processes, the Military Commissions have been 
heavily criticized for allowing the possibility 
of withholding evidence from the accused and of 
using evidence obtained through torture. This 
latter provision was later dropped, but the 
possibility of using evidence obtained through 
coercion remains at the discretion of the 
government-appointed military judge, and it 
should also be noted that this is an 
administration that has found it notoriously 
difficult to differentiate between acts of torture and acts of coercion.

The Commissions have also stumbled from one 
disaster to another. Dismissed as illegal by the 
Supreme Court in June 2006, they were 
resuscitated by Congress just a few months later, 
but were then struck down by their own judges in 
June 2007, on the grounds that the legislation 
that had revived the process -- the Military 
Commissions Act -- had authorized the judges to 
try “illegal enemy combatants,” whereas the 
process at Guantánamo that had supposedly made 
the prisoners eligible for trial -- the Combatant 
Status Review Tribunals, themselves heavily 
criticized for relying on secret evidence 
obtained by dubious means -- had only declared 
that the prisoners were “enemy combatants.”

Although this issue was resolved just a few 
months later, in a hastily-convened appeals 
court, the Commissions have never, even briefly, 
escaped from the deep shadows cast over their 
legitimacy by their own government-appointed 
military defense lawyers, who have maintained, 
from the moment that they first investigated the 
new trial system in any detail, that the 
Commissions are, to quote just a few examples, 
“implements for breaking the law” by concealing 
evidence of torture (Lt. Cmdr. Charles Swift, who 
represented Salim Hamdan, a driver for Osama bin 
Laden, in the Supreme Court case that threw out 
the first system of Military Commissions), and 
rigged, ridiculous, unjust, farcical, and a sham 
(Lt. Cmdr. William Kuebler, who represents the Canadian Omar Khadr).

Currently mired in controversy in the case of 
Khadr, who was just 15 years old when he was 
captured -- and, it was recently revealed, may 
not have killed the US soldier whose murder is 
the key charge against him -- the Commissions 
have fared no better in any of the other 
pre-trial hearings that have taken place 
recently. Lawyers for Salim Hamdan have fought 
tenaciously to establish that he had no insider 
role in al-Qaeda and should therefore have rights 
as a Prisoner of War, and in the last month three 
other prisoners have resorted to disrupting their 
pre-trial hearings through a combination of 
non-cooperation and pleas for justice that have 
done little to reassure the wider world that the 
process is either valid or fair.

As I reported last month, the first of the three 
to boycott the process was Mohamed Jawad, an 
Afghan who, like Omar Khadr, was also a juvenile 
when he was seized after allegedly throwing a 
grenade at a vehicle carrying two US soldiers and 
an Afghan translator. Dragged from his cell to 
attend his hearing, he told the judge in his 
case, Col. Ralph Kohlmann, “My right has not been 
given to me. I have not violated any 
international law. There are many accusations 
against me 
 they don’t make any sense 
 I am a 
human being.” He added that he “continued to be 
treated unjustly and interrogated, and that he 
wanted the ‘whole world’ to know it.”

Jawad was followed by Ahmed Mohammed al-Darbi, a 
Saudi captured in Azerbaijan and rendered to 
Guantánamo via Afghanistan, who is accused of 
plotting attacks on shipping for al-Qaeda. After 
al-Darbi refused to take part in the Commission 
process, explaining that it lacked legitimacy, 
his military-appointed lawyer, Army Lt. Col. 
Bryan Broyles pointed out that he had no choice 
but to accept his client’s actions, which, as the 
Associated Press put it, he described as the result of a “reasoned decision.”

Although the judges in the Commissions attempted 
to insist that the lawyers “must carry on with 
their defense even if their clients boycott,” Lt. 
Col. Broyles was adamant, as he told reporters, 
that al-Darbi’s decision “should mean ... that I 
sit very quietly, answer the judge's direct 
questions and that's it.” He added that his role 
in al-Darbi’s forthcoming trial was now 
equivalent to that of a “potted plant,” and that 
he would “almost certainly” file a challenge 
against any order demanding that he defend his client against his wishes.

Lt. Col. Broyles’ criticism is more significant 
than it may at first appear, as it highlights a 
conflict of interest that is genuinely troubling 
to defense lawyers called upon to defend clients 
who subsequently refuse their services. Under the 
terms of their military contracts, they are 
supposed to follow orders and insist on defending 
the men, even though they refuse counsel, but as 
civilian lawyers they could have their licenses 
revoked if they attempt to defend clients who have fired them.

This conflict of interest has arisen in the 
Commissions before. In their first incarnation, 
before the Supreme Court ruled that they were 
illegal, two of those charged -- Ali Hamza 
al-Bahlul, a Yemeni whose pre-trial hearing is 
expected imminently, and Ghassan al-Sharbi, a 
Saudi who has not yet been charged under the new 
system -- refused to be represented by the 
lawyers assigned to them: Major Tom Fleener and 
Lt. Cmdr. William Kuebler, who now represents Omar Khadr.

In an article in GQ last summer, Major Fleener 
and Lt. Cmdr. Kuebler both explained that they 
were unable to find any justification for the 
administration’s insistence that the prisoners 
were not allowed to represent themselves. As Sean 
Flynn noted, “The right to self-representation 
[has] been a codified tenet of American law for 
217 years. Under established rules, whether a man 
can competently defend himself is irrelevant; he 
need only be competent to make the decision to 
represent himself.” Kuebler believed that 
al-Sharbi was competent to make that decision. 
“Therefore,” Flynn continued, “Kuebler believed 
he had an ethical obligation to step aside. A 
lawyer can’t force himself upon an unwilling 
client, and no credible court would ever allow 
such a thing. To do so would be to replace a 
vigorous defender with a prop, an actor in a 
charade that only mimicked a proper trial.”

Major Fleener faced a similar problem in the case 
of Ali Hamza al-Bahlul. He told Flynn, “The 
concept of compelled representation has always 
bothered the crap out of me. You just don’t force 
lawyers on people. You don’t represent someone 
against his will. It’s never, ever, ever done.” 
Flynn then explained, “The reason it’s never done 
is that it undermines the concept of a fair 
trial. When a man’s life or liberty is at stake, 
he gets to decide who will speak for him. That’s 
the way American courts work, have always worked. 
To eliminate that right is to begin to transform a trial into a pageant.”

On April 10, when a third prisoner refused legal 
representation in his trial by Military 
Commission, what appeared to be a trend began to 
attract the interest of the world’s media. 
Ibrahim al-Qosi, a Sudanese prisoner accused of 
working as an al-Qaeda operative, told Air Force 
Lt. Col. Nancy Paul, the judge at his pre-trial 
hearing, that “he did not want a lawyer and would 
not attend future hearings because he did not 
consider the court legitimate,” as the AP 
described it. “I do not recognize the justice or 
the lawfulness of this court,” he said, adding, 
“What is happening in your courts is in fact a 
sham, which aims solely that the cases move at 
the pace of a turtle in order to gain some time 
to keep us in these boxes without any human or 
legal rights.” As the AP report continued, “He 
later removed the headphones used to hear the 
translator and said he would participate no 
further, declining to answer the judge's 
questions,” and saying, “I will leave the field 
and you can play as you want to play.”

Although Brig. Gen. Thomas Hartmann, the legal 
advisor to the Commissions’ convening authority, 
attempted to shore up the ailing process, 
pointing out that the Commissions’ rules “provide 
for the process to move forward whether or not 
the accused chooses to participate,” and 
defending the trials as “extraordinarily fair by 
any norm” and providing “substantial 
protections,” attorney Neal Sonnett, who monitors 
the Commissions for the American Bar Association, 
explained why proceeding with trials without the 
defendants being present would be potentially 
fatal for their perceived legitimacy. “If all 
these cases are going to proceed with empty 
chairs,” he said, “what has already been called a 
kangaroo court will just be highlighted as really a kangaroo court.”

It later transpired that al-Qosi’s defense 
lawyer, Navy Reserves Cmdr. Suzanne Lachelier, 
had not even been able to meet her client. As 
Carol Rosenberg explained in the Miami Herald, 
she had asked the judge “to help her gain access 
to [al-]Qosi's cell to try to persuade him -- 
face to face -- to accept her services. The judge 
refused. Prison camp commanders have said such 
access is against Pentagon policy.”

With the judge insisting that the case proceed as 
planned, and Cmdr. Lachelier left to consult the 
California bar to discover whether, as with the 
concerns of Lt. Cmdr. Kuebler, Major Tom Fleener 
and Lt. Col. Broyles, her license will be at risk 
for representing someone who fired her, the time 
was clearly ripe for a morale-boosting exercise 
by the authorities, which is where, I presume, 
the idea for the statement about televising the 9/11 trials arose.

What makes the announcement particularly 
premature is that those who have been studying 
the Commissions’ recent progress -- or lack of it 
-- know that the major obstacle preventing even 
the pre-trial hearings of Khalid Sheikh Mohammed 
and his alleged accomplices from proceeding is 
the fact that they do not yet have the required 
legal representation. Just last month, Col. Steve 
David, the Commissions’ chief defense lawyer, 
explained that, unlike the prosecution, which has 
a full roster of 30 lawyers, he has only nine 
lawyers on duty, who are already struggling to cope with their caseload.

It was, however, also ironic that the military’s 
announcement almost immediately backfired when 
one of the few military lawyers assigned so far 
-- Navy Capt. Prescott Prince, who was recently 
appointed to defend Khalid Sheikh Mohammed -- 
added his own criticisms of the Commission 
process to the ever-growing list of insider 
complaints. As Reuters described it, Capt. Prince 
“said he doubts the defendants can get a fair 
trial in the Guantánamo court because it accepts 
hearsay evidence that may have been obtained 
through cruel and dehumanizing means,” and also 
pointed out that the Geneva Conventions ban “acts 
of violence or intimidation.”

He also explained, in Reuters’ words, that, “if 
the trials are indeed fair, then broadcasting 
them widely would prove that to the world, but he 
worried about setting a precedent by televising 
what he suspects will be show trials,” and added, 
“I can just imagine American soldiers and sailors 
and airmen being subjected to similar show trials worldwide.”

With his talk of show trials -- and his fears 
that members of the US military are liable to be 
subjected to US-influenced show trials in future 
-- Capt. Prince joins an ever-growing list of 
military defense lawyers who understand that the 
Military Commissions are both unjust and 
counter-productive. It is, as I have stated 
before, time to shut the system down and move trials to the US mainland.

Andy Worthington is a British historian, and the 
author of 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk

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