The Defendant Who Wasn't There

(Originally posted on Daily Kos.)

On Thursday, I observed proceedings in the case of Mohammed Kamin, an Afghan detainee who has been held for more than five years, first in Bagram and then in Guantánamo. Kamin faces possible life in prison on charges that he "provided material support for terrorism by receiving arms training at an Al Qaeda camp in Afghanistan for several months in 2003." Because Kamin is boycotting his hearing, the proceedings were held in his absence.

The proceedings not only offered a glimpse into what is happening in the prison camps but also highlighted several recurring themes with respect to military commission process. They revealed the difficult ethical questions faced by military defense counsel who are assigned to represent detainees but do not wish to participate, the overarching and systemic failure of the discovery process, and the ad hoc nature of the proceedings themselves. Incredibly, more than five years into Kamin's detention, the government is still trying to figure out how these proceedings should operate, including what kind of resources must be provided to the defense.

The first part of the hearing consisted of witness testimony to establish why Kamin was not present. The officer who had been responsible for bringing him to court said that when she went to Kamin's cell to notify him of the hearing, he ripped up the notice, began kicking and hitting the cell door and stated that he was innocent and it was President Bush who should be on trial.

A prosecution motion to compel Kamin's presence by "forcibly extracting" him from his cell was denied after defense lawyers objected on the grounds that it would put Kamin and others at risk. The judge stated that forcing Kamin to appear would serve no purpose and would only lead to a repeat of what had happened last May when a "forcible extraction" order was issued to compel Kamin's attendance at his arraignment. At that time, Kamin resisted the officers and was brought to court in shackles with bruises, cuts and a swollen eye.

One of the key issues for the defense — and for the court — is to determine if Kamin is competent to waive his right to counsel. Indeed, this is currently an issue in a number of military commission cases where detainees have indicated that they do not want to participate in the proceedings. Defense counsel for Kamin emphasized the "Catch-22" in which he found himself — whether, and how, to represent the interests of a prisoner who has stated that he does not want such representation.

A mental status evaluation that found Kamin competent to participate in the proceedings was recently conducted by two military doctors — one, Col. Elspeth Cameron Ritchie, has been criticized for assisting in the interrogation process — even though the doctors had never met or observed the defendant. Understandably, defense counsel objected to the adequacy of that evaluation emphasizing the need for a civilian psychiatric expert who could challenge its findings and offer advice on representing a detainee who was resistant to such representation. The defense is proposing a civilian psychiatric expert experienced in working with terrorism suspects. The prosecution objected to the need for a civilian expert and insisted that if an additional defense expert was warranted, that person should come from the military. The judge did not rule on the issue. However, he asked the prosecution to start the process of identifying such an expert, while promising that the defense would have an opportunity to challenge the expert's qualifications.

A key issue in all of the military commission cases is the government's withholding of documents that are critical for a full and fair hearing. (Indeed, earlier in the week the government dismissed without prejudice five military commission cases, citing, in some accounts, new material received from government agencies which required reassessment of the cases.) Kamin's case is no exception. Citing the intelligence community's "systemic failure" to cooperate, the defense noted that the government's continued delay in responding to discovery requests would ultimately deprive Kamin of government documents to which he is entitled. Defense counsel argued that dismissal of the case with prejudice was warranted not only as a sanction for the government's failure to comply with the discovery process in a timely manner, but also as a deterrent to the intelligence agencies that continue to drag their feet, jeopardizing the integrity of the process.

The prosecution responded that the "systemic problems" referred to by the defense did not apply in this case, that there simply were not that many responsive documents, and that the proper way to proceed would be a motion to compel. The judge opted for the government's proposal, in part based on his assessment that Kamin was not being prejudiced by the discovery delay because he had chosen not to cooperate with the proceedings. Highlighting the bizarre nature of the proceedings, in which Kamin has been detained for more than five years and can remain detained even if he were found not guilty, the judge stated "this is not a situation where you have a guy in pretrial confinement or awaiting charges so he can get on with his life."