[Ppnews] Predictable Chaos - Gitmo Trials Resume

[Political Prisoner News]

http://www.counterpunch.org/worthington07202009.html

July 20, 2009


Gitmo Trials Resume

Predictable Chaos

By ANDY WORTHINGTON

At Guantánamo last week, the Military Commission 
trial system convened for only the second time 
since President Obama announced 
<http://www.counterpunch.org/worthington01222009.html>a 
four-month freeze on all proceedings on his first 
day in office to give the new administration’s 
inter-departmental 
<http://www.counterpunch.org/worthington01232009.html>Guantánamo 
Task Force an opportunity to review the best ways 
in which to deal with the remaining prisoners 
inherited from the Bush administration.

Reviving the Commissions, ill-advisedly

In May, in 
<http://www.andyworthington.co.uk/2009/05/21/transcript-of-president-obamas-speech-about-guantanamo-and-terrorism-may-21-2009/>a 
major speech 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.

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 
<http://www.counterpunch.org/worthington02272008.html>Col. 
Morris Davis, the former chief prosecutor, and 
<http://www.counterpunch.org/worthington10032008.html>Lt. 
Col. Darrel Vandeveld, 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.

Critics -- myself included -- were 
<http://counterpunch.org/worthington05222009.html>not 
placated 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 
<http://www.counterpunch.org/worthington05212009.html>Ahmed 
Khalfan Ghailani, a suspect in the 1998 African 
embassy bombings, would face a trial in New York, 
and, moreover, in an accompanying 
<http://www.usdoj.gov/opa/pr/2009/June/09-ag-563.html>press 
release, the Justice Department trumpeted its 
“long history of 
 successfully prosecuting 
terror suspects through the criminal justice 
system” (and 
<http://www.usdoj.gov/opa/pr/2009/June/09-ag-564.html>attached 
a list 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 
(<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, 
<http://www.counterpunch.org/worthington08082008.html>Salim 
Hamdan and 
<http://www.counterpunch.org/worthington11042008.html>Ali 
Hamza al-Bahlul) -- should not be revived.

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 
<http://www.counterpunch.org/worthington07132009.html>I 
reported last week 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.

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.

An outlandish claim kicks off the proceedings

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’ 
<http://www.andyworthington.co.uk/2009/05/06/exclusive-new-chief-prosecutor-appointed-for-military-commissions-at-guantanamo/>new 
chief prosecutor, 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 
<http://www.counterpunch.org/worthington10282008.html>disturbingly 
one-sided trial in November).

As David Danzig, Deputy Program Director at 
<http://www.humanrightsfirst.org/blog/hrfblog/2009/07/military-prosecutor-66-ready-to-be.html>Human 
Rights First, explained, Murphy said, “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.”

Personally, I’m amazed that Murphy could claim 
that there are as many as “66 viable cases,” 
given that 
<http://www.andyworthington.co.uk/2009/03/18/lawrence-wilkerson-tells-the-truth-about-guantanamo/>intelligence 
reports 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.”

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.”

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.’”

Challenges and calls for delay in the case of Ibrahim al-Qosi

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.

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 
<http://www.reuters.com/article/topNews/idUSTRE56E7M320090715?feedType=RSS&feedName=topNews>Reuters.

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 
<http://www.andyworthington.co.uk/2008/08/06/a-critical-overview-of-salim-hamdans-guantanamo-trial-and-the-dubious-verdict/>Salim 
Hamdan, 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.”

“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 Miami Herald 
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.”

Challenges and calls for delay in the case of Mohammed Kamin

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.

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 
<http://www.counterpunch.org/worthington03222008.html>I 
explained last March, when he was arraigned:

[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.

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.”

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 
(<http://www.senate.gov/%7Earmed_services/statemnt/2009/July/Kris%2007-07-09.pdf>PDF), 
“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.”

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 
<http://online.wsj.com/article/SB124769527026947821.html>Wall 
Street Journal 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.”

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.”

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.”

No lawyers for Omar Khadr

On Wednesday afternoon, 
<http://www.counterpunch.org/worthington11152007.html>Omar 
Khadr, 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 
<http://www.andyworthington.co.uk/2009/06/04/a-broken-circus-guantanamo-trials-convene-for-one-day-of-chaos/>first 
reconvened. On that occasion, as Michelle 
Shephard explained in the 
<http://www.thestar.com/article/643575>Toronto 
Star, 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.”

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.

Mostly a no-show for the 9/11 pre-trial hearing

The big news of the week was supposed to be the 
pre-trial hearing of 
<http://www.counterpunch.org/worthington02122008.html>the 
five men accused of involvement in the 9/11 
attacks, 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, 
<http://www.counterpunch.org/worthington07142007.html>Khalid 
Sheikh Mohammed, the 
<http://www.counterpunch.org/worthington09292008.html>unarguable 
showman 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.

According to 
<http://www.reuters.com/article/topNews/idUSTRE56E7M320090716>Reuters, 
“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.

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.

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.

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.

Andy Worthington is a British journalist and 
historian, and the author of 
'<http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga>The 
Guantánamo Files: The Stories of the 774 
Detainees in America's Illegal Prison' (published 
by Pluto Press). Visit his website at: 
<http://www.andyworthington.co.uk/>www.andyworthington.co.uk

He can be reached at: 
<mailto:andy at andyworthington.co.uk>andy at andyworthington.co.uk




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