The Man Who Wasn't There

(Originally posted on Daily Kos.)

Monday's hearing in the Guantánamo Military Commission prosecution of the alleged 9/11 plotters was expected to address the now-familiar allegations of improper command influence by Brigadier General Thomas Hartmann, who has already been excluded from three other commission trials for politicizing his legal advice in favor of the prosecution. But if there's one thing we've learned to expect about these military commissions, it's that nothing goes according to plan. In that regard, Monday didn't disappoint.

At 9 a.m., when proceedings were scheduled to begin, one seat was noticeably empty: Ramzi bin al-Shibh's. The other four so-called "High-Value Detainees" were there, as were their military and civilian lawyers and advisors, the prosecutors, the many guards, and the unnamed and never-identified civilian contractors who control security. But bin al-Shibh was nowhere in sight.

For the next 90 minutes, the defendants spoke to their "co-counsel" (three of the detainees are representing themselves) and to each other. Then a recess was announced. There was no explanation.

Court reconvened at 1:30 p.m., and this time the judge explained the reason for the delay: the court was considering how to address bin al-Shibh's absence. Bin al-Shibh is awaiting a competency determination triggered by the revelation in a previous hearing that he is being treated with anti-psychotic medication. On Monday morning, he refused to leave his cell to appear in court. So the issue was: could bin al-Shibh voluntarily waive his presence? Did he know that such a waiver might affect his future rights, including his right to represent himself?

One way to find out, of course, would have been to force the defendant to come to court, by performing what is called a "cell extraction." That was the judge's obvious desire: he wanted bin al-Shibh in court, to ask him whether or not he wished to decline his right to be present. The prosecution also favored extraction.

The surprising obstacle to this plan was "JTF GTMO" — the joint task force responsible for all detainee operations at Guantánamo Bay (in effect, the jailers). The military officers responsible for detaining bin al-Shibh (as opposed to prosecuting him) believed that, according to the law, he had a right to refuse attendance, and they would not forcibly extract him without a court order. Both judge and prosecutor were plainly frustrated by this position.

Bin al-Shibh's military defense counsel, Lt. Cmdr Suzanne Lachelier, argued that until bin al-Shibh's competency could be assessed, the court should not attempt to assess his waiver of his right to be present. Lachelier pointed out that in federal court and in a military court martial, once a defendant's mental competency has been seriously questioned, typically all other matters halt until that issue can be resolved.

"The question is one of meaningful presence," she said. "If he is not competent, then forcing him to be here may mean he is here in body only." Lachelier revealed that the drug her client was taking was one typically used to medicate schizophrenia. She referred to pleadings filed by the bin al-Shibh team that contained considerable additional evidence, which she could not discuss in court, which bolstered the claim that he was mentally ill and might not be competent to stand trial or able to participate in his own defense.

The court ultimately decided that JTF GTMO would get their order. Bin al-Shibh would be forced out of his cell and into court -- but not before every effort could be made to persuade him. First, the court ordered Lachelier to attempt to persuade her client. Lachelier objected: because the location of the infamous "Camp 7," where the former CIA prisoners are held, is top secret, bin al-Shibh must be transported to meet with his counsel. But for that to happen, "he has to be hooded, placed shackled in a van" — something that Lachelier opposed. Instead, she offered to be hooded herself so that she could visit her client — a remarkable suggestion that highlights yet again the absurdity of Guantánamo's secrecy regime. The judge declined.

At this moment, Khalid Sheikh Mohammed signaled that he wished to be heard. "If you will let Mr. Nevin explain," he said. David Nevin, Mohammed's ACLU-sponsored lawyer, said that Mohammed wanted bin al-Shibh to be present in court as well. "If you allow Mr. Mohammed or one or more of the others to visit Mr. bin al-Shibh, perhaps they could persuade him." "No force" said Mr. Mohammed.

The judge then turned to Walid bin Attash, who had asked to be heard previously, and who said he had the same suggestion. Speaking of bin al-Shibh, Attash said: "He doesn't trust anyone in this government. But he trusts us. With what has happened to us in this situation — we have all lost faith. But we have faith in each other."

The judge ordered that bin al-Shibh be brought to the Commission at 9 a.m. Tuesday. While he would not order a meeting of the codefendants, he suggested that the defendants write a note or series of notes to bin al-Shibh. As we filed out of the gallery, the four capital codefendants and their lawyers were drafting notes to bin al-Shibh.

Earlier, when the judge and the prosecutor were musing together about why JTF GTMO simply couldn't go into bin al-Shibh's cell and take him out, the judge observed: "This is a learning process on many levels."

But should the highest-profile capital case in U.S. history really be a "learning process"? Isn't it time to return to the rules we've been using for hundreds of years, the ones the Constitution requires? Putting training wheels on a vehicle headed for the execution chamber — that is not a spectacle that can restore confidence, at home and abroad, in American justice.