<html>
<body>
<font size=3>
<a href="http://www.counterpunch.org/worthington07202009.html" eudora="autourl">
http://www.counterpunch.org/worthington07202009.html<br><br>
</a></font><font face="Verdana" size=2 color="#990000">July 20,
2009<br><br>
</font><h1><font face="Times New Roman, Times" size=4><b>Gitmo Trials
Resume <br><br>
</i></font><font face="Times New Roman, Times" size=5 color="#990000">
Predictable Chaos
</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">A</font>
<font face="Verdana" size=2>t Guantánamo last week, the Military
Commission trial system convened for only the second time since President
Obama announced
<a href="http://www.counterpunch.org/worthington01222009.html">a
four-month freeze</a> on all proceedings on his first day in office to
give the new administration’s inter-departmental
<a href="http://www.counterpunch.org/worthington01232009.html">Guantánamo
Task Force</a> an opportunity to review the best ways in which to deal
with the remaining prisoners inherited from the Bush
administration.<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>Reviving the
Commissions, ill-advisedly<br><br>
</b></font><font face="Verdana" size=2>In May, in
<a href="http://www.andyworthington.co.uk/2009/05/21/transcript-of-president-obamas-speech-about-guantanamo-and-terrorism-may-21-2009/">
a major speech</a> on national security, Barack Obama signaled that he
was planning to revive the Commissions, arguing that, with some
amendments, they would be “fair, legitimate, and effective,” and
promising to “work with Congress and legal authorities across the
political spectrum on legislation” that would fulfill these
aims.<br><br>
Pleasant though it was to hear a President talk of involving Congress,
without having to have his arm twisted to do so, Obama’s willingness to
revive the Commissions flew in the face of widespread opposition from
civilian lawyers and a wide range of legal experts, and, most
significantly, from seven former prosecutors who resigned in disgust at
what they saw as the politicization of the system or its irremediable
faults (including
<a href="http://www.counterpunch.org/worthington02272008.html">Col.
Morris Davis</a>, the former chief prosecutor, and
<a href="http://www.counterpunch.org/worthington10032008.html">Lt. Col.
Darrel Vandeveld</a>, who resigned last September), and all of the
government-appointed defense attorneys, who have been prepared to risk
their careers to oppose what they all realized was an unjust
system.<br><br>
Critics -- myself included -- were
<a href="http://counterpunch.org/worthington05222009.html">not
placated</a> by Obama’s proposed tweaking of the Commissions’ rules, and
insisted that the only way forward was to drop the Commissions and
proceed with federal court trials. Bizarrely, on the same day as Obama’s
speech, the administration announced that
<a href="http://www.counterpunch.org/worthington05212009.html">Ahmed
Khalfan Ghailani</a>, a suspect in the 1998 African embassy bombings,
would face a trial in New York, and, moreover, in an accompanying
<a href="http://www.usdoj.gov/opa/pr/2009/June/09-ag-563.html">press
release</a>, the Justice Department trumpeted its “long history of …
successfully prosecuting terror suspects through the criminal justice
system” (and
<a href="http://www.usdoj.gov/opa/pr/2009/June/09-ag-564.html">attached a
list</a> of successful prosecutions over the last 16 years), which rather
seemed to prove the point that the Commissions -- which have achieved
only three dubious results
(<a href="http://www.andyworthington.co.uk/2007/10/23/the-politics-of-david-hicks-release-from-guantanamo-confirmed-plea-bargain-arranged-between-cheney-and-howard/">
David Hicks</a>,
<a href="http://www.counterpunch.org/worthington08082008.html">Salim
Hamdan</a> and
<a href="http://www.counterpunch.org/worthington11042008.html">Ali Hamza
al-Bahlul</a>) -- should not be revived.<br><br>
Nevertheless, in the last few weeks the Senate Armed Services Committee
-- and its chairman, Sen. Carl Levin, who really should know better --
bowed to the President’s wishes and tweaked the wording of the Military
Commissions Act of 2006 (which revived the Commissions after the Supreme
Court ruled that their first incarnation was illegal), even though, as
<a href="http://www.counterpunch.org/worthington07132009.html">I reported
last week</a> when Lt. Col. Vandeveld delivered testimony to the
Committee which should have halted the politicians in their tracks, it
still allows the use of information masquerading as evidence that was
obtained through coercion, and still allows for hearsay information to be
appraised as evidence by judges who are not qualified to make such
decisions.<br><br>
The legislation has yet to be approved by the Senate, but last week the
Commissions reconvened anyway, even though the as-yet-undecided debate
about their future added another layer of confusion to events that, as
has been typical throughout the long and ignominious history of the
Commissions, involved technical difficulties, uncooperative prisoners,
and bouts of wrangling over the rules.<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>An outlandish claim
kicks off the proceedings<br><br>
</b></font><font face="Verdana" size=2>One of the week’s few dramatic
highlights came at the very beginning. Speaking to reporters on Tuesday,
before the pre-trial hearings began, Navy Capt. John Murphy, the
Commissions’
<a href="http://www.andyworthington.co.uk/2009/05/06/exclusive-new-chief-prosecutor-appointed-for-military-commissions-at-guantanamo/">
new chief prosecutor</a>, announced that prosecutors were ready to
proceed with cases against 66 of the remaining 228 prisoners (the 229th,
Ali Hamza al-Bahlul, is already locked up for life -- in a cell on his
own somewhere in Guantánamo -- after his
<a href="http://www.counterpunch.org/worthington10282008.html">
disturbingly one-sided trial</a> in November).<br><br>
As David Danzig, <i>Deputy Program Director at
<a href="http://www.humanrightsfirst.org/blog/hrfblog/2009/07/military-prosecutor-66-ready-to-be.html">
Human Rights First</a>, explained, Murphy said, </i>“We have 66 viable
cases,” and added that he was “personally comfortable” that “the
government could mount a case that would not depend on evidence gathered
through the use of coercion.” Danzig also noted that Murphy “refrained
from commenting on whether the government might seek to bring some of
those cases to trial in federal civilian courts.” <br><br>
Personally, I’m amazed that Murphy could claim that there are as many as
“66 viable cases,” given that
<a href="http://www.andyworthington.co.uk/2009/03/18/lawrence-wilkerson-tells-the-truth-about-guantanamo/">
intelligence reports</a> over the years have put the number of prisoners
with any meaningful connection to terrorism as somewhere between two
dozen and 40 of the prisoners (and also given that, of the 23 cases that
were still active when Bush left office, two involved juveniles, and at
least eight of the cases had nothing to do with “war crimes”), but what
particularly exercised some of the reporters was that the prosecutor’s
office seemed to be “making decisions about what evidence was appropriate
and what evidence was not appropriate to use without any independent
review.”<br><br>
Vic Hansen, a former Army Judge Advocate General officer who was
observing the proceedings for the National Institute of Military Justice,
said, “They say repeatedly that they are not going to rely on evidence
that was obtained using coercion. Well, it’s the prosecution who is
making that call alone without any transparency.”<br><br>
This was a very valid point, and as Danzig noted, although Murphy “said
that the prosecution had developed ‘a standard’ to ensure that no
evidence obtained improperly would be used in the trials … he declined to
elaborate on that standard,” and did not refer to the fact that the
Senate is still discussing whether to impose a voluntariness standard (at
the instigation of the Obama administration), which, as Danzig stated,
“would presumably exclude coerced evidence.” As Hansen added, “What it
comes down to is more or less the government saying, ‘just trust us.’”
<br><br>
</font><font face="Verdana" size=2 color="#990000"><b>Challenges and
calls for delay in the case of Ibrahim al-Qosi<br><br>
</b></font><font face="Verdana" size=2>On Wednesday, when the pre-trial
hearings were supposed to begin, court staff complained they couldn't
hear Navy Cmdr. Dirk Padgett introduce himself as a prosecutor in the
case of Ibrahim al-Qosi, one of three prisoners whose cases were being
discussed that day, prompting a reply from Padgett that, to some, could
serve as a motto for the whole of the Commissions. “Hopefully, this is
going to get better,” he said.<br><br>
In the event, things didn’t get better at all. In the case of al-Qosi, a
49-year old Sudanese prisoner who is accused of being a bodyguard and
sometime driver for Osama bin Laden, prosecutors called for a delay “in
the interests of justice” until September, which would, apparently, give
the Obama administration time to complete its review of the cases. Marine
Corps Capt. Seamus Quinn, one of al-Qosi’s prosecutors, stated, “The
continuance is needed ... to address and eliminate all possible
challenges to this process,” according to
<a href="http://www.reuters.com/article/topNews/idUSTRE56E7M320090715?feedType=RSS&feedName=topNews">
Reuters</a>.<br><br>
The call for a delay infuriated al-Qosi’s defense lawyers, who have long
maintained that their client was nothing more than a cook for bin Laden,
and of no more significance than
<a href="http://www.andyworthington.co.uk/2008/08/06/a-critical-overview-of-salim-hamdans-guantanamo-trial-and-the-dubious-verdict/">
Salim Hamdan</a>, one of bin Laden’s drivers, who is now a free man in
Yemen, having served a five-month sentence that he was given after his
trial last August. As Reuters described it, al-Qosi’s lawyers asked the
military judge “to either dismiss the charges or move forward.”<br><br>
“You cannot sit somebody in indefinite detention,” Navy Lt. Cmdr. Travis
Owens said. “It violates every principle we have as Americans.” Invoking
what Carol Rosenberg of the <i>Miami Herald</i> described as a
“justice-delayed, justice-denied” argument, on the grounds that al-Qosi
“was among the first men taken to the prison camps when they opened in
January 2002,” Owens added, “He was one of the guys who was kept in the
dog cages. Talk about oppressive confinement.” <br><br>
</font><font face="Verdana" size=2 color="#990000"><b>Challenges and
calls for delay in the case of Mohammed Kamin<br><br>
</b></font><font face="Verdana" size=2>While the judge, Air Force Lt.
Col. Nancy Paul, refused to make an immediate ruling on the prosecutors’
request, even more chaotic scenes took place in an adjacent courtroom,
where a second pre-trial hearing was taking place in the case of Mohammed
Kamin, an Afghan seized in 2003. <br><br>
Kamin’s is one of the more ludicrous cases put forward for a trial by
Military Commission -- or, for that matter, any kind of trial -- as
<a href="http://www.counterpunch.org/worthington03222008.html">I
explained last March</a>, when he was arraigned:<br><br>
</font>
<dl>
<dd>[Kamin] is accused of “providing material support for terrorism,”
specifically by receiving training at “an al-Qaeda training camp,”
conducting surveillance on U.S. and coalition military bases and
activities, planting two mines under a bridge, and launching missiles at
the city of Khost while it was occupied by U.S. and coalition forces. He
is not charged with harming, let along killing U.S. forces, and were it
not for his supposed al-Qaeda connection -- he apparently stated in
interrogation that he was “recruited by an al-Qaeda cell leader” -- it
would, I think, be impossible to make the case that he was involved in
“terrorism” at all.<br><br>
</dl>On Wednesday, Kamin boycotted the proceedings, telling a military
official who offered him the opportunity to take a shower before the
hearing, “I’ll take a shower when you guys are ready to send me home.” In
his absence, prosecutors also called for a delay, although no one
actually turned up to make the request. Instead, a heavily pregnant
prosecutor, Navy Lt. Rachel Trest, called in by closed-circuit feed from
Washington, although, as Carol Rosenberg noted, “her argument was
inaudible at the media center designed years ago to simultaneously
broadcast both trials to journalists.” <br><br>
There was, however, an outburst of drama when, in spite of a court tip
sheet predicting that Navy Lt. Rich Federico, one of Kamin’s defense
lawyers, would “ask for guidance on how much trial preparation could take
place during the White House-mandated interregnum,” Federico instead
urged dismissal of the entire case, referring to comments made last week
by Justice Department national security lawyer David Kris, who told the
Senate Armed Services Committee
(<a href="http://www.senate.gov/%7Earmed_services/statemnt/2009/July/Kris%2007-07-09.pdf">
PDF</a>), “Our experts believe that there is a significant risk that
appellate courts will ultimately conclude that material support for
terrorism is not a traditional law of war offence, thereby reversing
hard-won convictions and leading to questions about the system’s
legitimacy.” <br><br>
As this is the only charge Kamin faces, Federico told the judge, “They
cannot ethically proceed on this charge in this forum. It’s appalling.
It’s just a waste of everyone’s time.” The
<a href="http://online.wsj.com/article/SB124769527026947821.html">Wall
Street Journal</a></i> added that he also said that the government’s
continued pursuit of the case was “unethical, immoral and unjust,” called
the proceedings “a charade, a complete fraud,” and stated that the
Commissions remained “a broken system.”<br><br>
As with al-Qosi’s case, Kamin’s judge, Air Force Col. Thomas Cumbie,
refused to make an immediate ruling on the prosecution’s call for a delay
-- or Federico’s unexpected intervention -- although, in response to a
challenge from Federico he conceded that “the rules of the court were
still evolving,” as Carol Rosenberg put it, and stated, “I’m not saying
in any way you ambushed me. Things change.”<br><br>
Nevertheless, the questions regarding the validity of the “material
support” charge are unlikely to go away, and will need resolving before
any further hearings take place, Ironically, the charge is a valid crime
in a federal court, but has been contested in the Commissions since it
was first grafted onto the legislation in 2006. As Salim Hamdan’s
civilian lawyer, Harry Schneider, explained on Wednesday, “We’ve always
been of the view that [material support] was not a war crime and the
conviction should not stand.” He added, as Carol Rosenberg put it, that
the debate in the Commissions “appeared to enhance a Hamdan clemency bid
already on file with the Pentagon,” and stated that, if the
administration does drop material support as a crime in the Commissions,
“Salim would be exonerated in the sense that he would never have been
convicted of anything.” <br><br>
<font face="Verdana" size=2 color="#990000">No lawyers for Omar
Khadr<br><br>
</b></font>On Wednesday afternoon,
<a href="http://www.counterpunch.org/worthington11152007.html">Omar
Khadr</a>, the Canadian who was just 15 when he was seized in 2002,
returned to the court to resume the discussions about his lawyers that he
was having on June 1, when the Commissions
<a href="http://www.andyworthington.co.uk/2009/06/04/a-broken-circus-guantanamo-trials-convene-for-one-day-of-chaos/">
first reconvened</a>. On that occasion, as Michelle Shephard explained in
the <a href="http://www.thestar.com/article/643575">Toronto Star</a></i>,
Army Col. Patrick Parrish “repeatedly lambasted Khadr’s legal team” for
their in-fighting, which had led Khadr to conclude that he couldn’t trust
any of them, but commended Khadr himself for being “well-spoken” and
“professional.”<br><br>
Six weeks ago, Parrish refused to allow Khadr to be unrepresented, and
the Canadian reluctantly decided to stick with Lt. Cmdr. William Kuebler,
who, it must be noted, has campaigned assiduously on Khadr’s behalf, but
on Wednesday, Khadr’s suspicions were back to the fore. “I don’t trust
the office of military defense,” he said, prompting Parrish to make the
unprecedented decision to appoint two civilian lawyers instead. <br><br>
<font face="Verdana" size=2 color="#990000">Mostly a no-show for the 9/11
pre-trial hearing<br><br>
</b></font>The big news of the week was supposed to be the pre-trial
hearing of
<a href="http://www.counterpunch.org/worthington02122008.html">the five
men accused of involvement in the 9/11 attacks</a>, but in the end this
too was a damp squib. No one turned up at all in the morning, after the
men refused to leave their cells, and in the afternoon,
<a href="http://www.counterpunch.org/worthington07142007.html">Khalid
Sheikh Mohammed</a>, the
<a href="http://www.counterpunch.org/worthington09292008.html">unarguable
showman</a> of the group, refused to attend, as did Ramzi bin al-Shibh,
even though the hearing was convened to deal with ongoing issues
regarding his mental competency, and that of another of the five, Mustafa
al-Hawsawi. Al-Hawsawi, Ali Abdul Aziz Ali and Walid bin Attash
eventually turned up in the courtroom, but there was little
activity.<br><br>
According to
<a href="http://www.reuters.com/article/topNews/idUSTRE56E7M320090716">
Reuters</a>, “al-Hawsawi soon demanded to leave after complaining he
would not be allowed to speak,” and “bin Attash, given five minutes to
address the court, complained that the presiding judge, Army Colonel
Steven Henley, had not responded to letters the five men had written to
him ‘a long time ago.’” In the only flicker of the dissent normally
associated with KSM’s presence, he explained, “If you don't have enough
patience to take this case, just give it to a different judge. We view
the judge and prosecution as one person. There's no difference.” Later,
bin Attash showed his disdain for the proceedings by throwing a paper
plane -- fashioned, presumably, from his court papers -- at one of his
co-accused.<br><br>
The rest of the session focused on attempts by bin al-Shibh’s lawyers to
“allow a defense consultant to examine CT scans of her client's brain and
perform further tests, including possibly an MRI, to ‘determine whether
any lesions in his brain affect his cognitive functioning.’” Navy Cmdr.
Suzanne Lachelier explained that bin al-Shibh has been diagnosed with
“delusional disorder,” but when she tried to explain that he had been
subjected to sleep deprivation, a court censor cut off the feed to the
media center. <br><br>
In an attempt to rebuff these complaints, one of the prosecutors, Navy
Lt. Clayton Trivett, said that bin al-Shibh’s complaints about sleep
deprivation may have been produced by his pre-existing condition. Trivett
explained that bin al-Shibh “has accused guards of pumping foul smells
and loud noises into his cell and ‘vibrating his bed’ to keep him awake,”
even though “The government's position is that it's not happening and
it's never been happening,” although another interpretation could be that
the initial collapse of bin al-Shibh’s mental health was caused by
whatever happened to him during the four years that he was held in a
secret CIA prison before his arrival at Guantánamo in September
2006.<br><br>
With no visible progress -- and with the little that did take place
overshadowed by the dispute over the charge of material support for
terrorism, which would have a knock-on effect on several other cases --
this was another dismal outing for the Commissions, and, surely, another
warning for the Obama administration that any kind of revival of the
wretched trial system will remain fraught with insoluble
problems.<br><br>
Andy Worthington</b> is a British journalist and historian, and the
author of
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (published by Pluto Press). Visit his website at:
<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
<br><br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
<br><br>
<x-sigsep><p></x-sigsep>
<font size=3 color="#FF0000">Freedom Archives<br>
522 Valencia Street<br>
San Francisco, CA 94110<br><br>
</font><font size=3 color="#008000">415 863-9977<br><br>
</font><font size=3 color="#0000FF">
<a href="http://www.freedomarchives.org/" eudora="autourl">
www.Freedomarchives.org</a></font><font size=3> </font></body>
</html>