Report from Guantánamo Hearings: When Due Process is a Matter of Life and Death

This week I’ve been at the Naval Base at Guantánamo Bay Cuba observing the first military commission proceedings since the ten-year anniversary of the opening of the Guantánamo prison. The proceedings concern the case of Abd al-Rahim Hussayn Muhammad al-Nashiri (pronounced al-NAH-shiri) — first taken into U.S. custody in November 2002 — who faces a possible death sentence for his alleged involvement in the bombing of the USS Cole over eleven years ago. Over the course of two full days of proceedings the military commission judge struggled with several motions that squarely implicate fundamental due process and fairness concerns, particularly crucial in a criminal trial where the defendant’s life is at stake. Yet few of these critical issues were resolved or even clarified this week as the commissions system continues to be bogged down by novel rules and a near complete lack of any instructive precedent.

Extensive and time-consuming consideration of pre-trial motions is common in any complex death penalty case. What is exceptional about the al-Nashiri case is that most of the concerns raised by participants would never be at issue in a trial before any federal court, or even state court, where the rules are more fully developed and substantial precedent exists. Moreover, the atypical procedural obstacles that have arisen in the al-Nashiri case stem in large part from the omission of protections long recognized as essential by ordinary courts.

For instance, federal courts and all state courts have long acknowledged the particular importance of sufficiently resourcing the defense in capital cases, a right widely recognized as requiring that the defense be allowed to ask the court for resources without showing the request to the prosecution. That is because if the defense were to include the prosecution in such requests it would risk revealing its trial strategy and giving the prosecution an unfair advantage. In the military commissions, on the other hand, the refusal to grant defense resources in death penalty cases has been such a serious problem that in 2009 Congress passed legislation making clear that the commissions were to provide defense counsel in capital cases with resources comparable to those granted in federal courts.

Yet last month the Military Commissions Convening Authority, the body in charge of granting defense resources, inexplicably rejected a joint request from both the defense and the prosecution for the defense to be able to request resources from the Authority without sharing the request with the prosecution. On Tuesday, the defense challenged the Authority’s rejection before Judge James Pohl, who seemed uncertain about whether he had the authority to overrule the Convening Authority’s decision.

Ultimately, Judge Pohl attempted to side-step the issue by asking defense counsel to provide only minimal descriptions of the resource request and related justification to the Authority and the Prosecution and to come back to the judge if and when those minimally described requests were denied. Given that there was nothing in the Authority’s lengthy and unequivocal rejection to suggest that it would accept a minimal description, it appears most likely that the commission participants will re-litigate the issue several times, leading to further delays.

Another issue that would never come up in federal courts is the question of whether the government can examine the content of attorney-client mail. In federal court, the government would never be permitted to do so, as it would clearly violate the attorney-client privilege and provide the prosecution an unfair and significant advantage over the defense.

Such practices were also rejected at Guantánamo until this past fall, when the Commander responsible for the prison began ordering closer reviews of attorney-client mail in military commission cases. A recent order requires that all attorney-client mail for detainees involved in the military commissions be reviewed by a team of government contractors for both physical and “information” contraband. The top military commissions defense lawyer saw this order as being such a threat to the attorney-client privilege that he told the attorneys under his command that they were ethnically obligated not to comply.

In the al-Nashiri case, after several hours of oral argument and witness testimony over two days, Judge Pohl was still unable to resolve the issue. Instead, he ordered the defense and prosecution to provide additional information and the issue will be addressed--for third time in the al-Nashiri case — at the next hearing in April.

A final issue that was raised and remains unresolved implicates the torturing of al-Nashiri while he spent four years in secret CIA custody. On Tuesday, defense counsel began to argue why his client should not be shackled while meeting with defense counsel because of the residual impact of his having been tortured while in shackles. (Publicly available information indicates that interrogators held a gun and power drill to al-Nashiri’s head during interrogations.) The answer to the underlying question of al-Nashiri’s shackling during defense counsel meetings was postponed to give the defense the opportunity to more fully explain the relevance of al-Nashiri’s mistreatment, an explanation that will most likely occur in a session closed to the public thus providing confirmation that the consistent true aim of the military commissions is to keep the secrets of American torturers. Again, no one in a federal or state capital trial would bother to question the “relevance” of a defendant’s torture to his capital defense. Particularly not when the torture was at the hands of the same government that seeks his death.

In sum, after two lengthy days of arguments, the al-Nashiri case seems hardly closer to coming to trial. Defense counsel suggested that the al-Nashiri trial wouldn’t even begin until 2015 in commissions it described as a “facsimile of a court.” In a press conference following the proceedings’ conclusion, family members of the victims of the Cole bombing also commented on the delays, one man saying he expected he might see justice by the time he was an old man. What wasn’t discussed at the press conference was how many of delays and procedural quagmires that have delayed justice for al-Nashiri and the Cole bombing victims alike could have been avoided had the case been brought in the established federal forum where it properly belonged.

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