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Military Commissions: The Process and the Rules
This week, ACLU Executive Director Anthony D. Romero writes his observations about the first preliminary hearings taking place at the Guantánamo Bay Naval Base.
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08-26-04; 11:28 P.M. - GUANTANAMO BAY, CUBA
Dear member of the ACLU family:
Well, today was certainly exciting. The courtroom drama due to incompetence and systematic problems with the rules is nothing to enjoy even with a front-row seat. We knew from the beginning that Ali Hamza Ahmed Sulayman al-Bahlul's hearing was going to be different than the others. As he walked in you could see a steely, some would say defiant, look in his eyes. He was dressed in western civilian clothes and was a slightly built man. His defense counsel, Cmdr. Phil Sundel and Maj. Mark Bridges, whom I met privately two days ago and was enormously impressed by, were not greeted with any warmth or recognition, unlike Salim Ahmed Hamdan and his lawyer Lt. Cmdr. Charlie Swift. The commission began with Col. Brownback going through the same script that was used in other proceedings, but he quickly got derailed when with Mr. al-Bahlul asked, ""Am I allowed to represent myself?""
Col. Brownback responded through the court interpreter (more on that later) that according to Military Commission Order No. 1, Paragraph 4(c), the answer was basically no. ""You must be represented at all times by detailed defense counsel,"" Col. Brownback said. Mr. al-Bahlul responded that he would indeed like to represent himself. Col. Brownback tried to explain how Cmdr. Sundel and Maj. Bridges were chosen, that they had many years experience, that they were chosen by chief defense counsel Col. Gunn (an exceptionally thoughtful, soft-spoken man with a very sharp mind); and then Mr. Brownback said, ""In addition to graduating from college and law school, each received extensive training in military law, which is at times a confusing subset of law."" There was a chuckle at the back of the room because ironically Mr. Brownback sounded just like the defense counsel over the last couple of days when they were arguing that members of the military commission should be lawyers. ACLU members will remember that four of the five members of the commission are not lawyers. Mr. Brownback continued to explain that someone representing oneself might find it difficult since Mr. al-Bahlul would be ""personally involved."" Defense counsel ""could remain objective in situations where a person about whom things are being said might become emotional or heated."" At one point, Mr. al-Bahlul interrupted him and asked, ""Are you done?"" And Mr. Brownback allowed him to speak.
In response to questions about whether he could represent himself, one translation of Mr. al-Bahlul's statement was ""I have some idea of practicing law in Yemen."" And when Cmdr. Sundel questioned the accuracy of that translation, Mr. al-Bahlul said, ""Don't interrupt me."" When he repeated his statement, the translation came back, ""I have some people who practice law in Yemen."" Throughout the exchange between Mr. Brownback and Mr. al-Bahlul, one had a sense of a very sophisticated defendant. He talked about his knowledge of international law and raised objections to the fact that under these rules he would be denied access to classified evidence. He also reassured the commission that he would conduct himself appropriately while in court.
Mr. al-Bahlul then began the now-famous line that sounded like the beginning of a confession. But the translation was so poor that all of the English speakers in the room were thrown into chaos. I think the official court translator said, ""I testify that the American government is under no pressure. I am al Qaeda and the relationship between me and Sept. 11? ."" Al Jazeera reported that Mr. al-Bahlul's statement was something to the effect that ""the U.S. government has not pressured me. I am a member of al Qaeda and in relation to 9/11? ."" The fact that Al Jazeera could get Mr. al-Bahlul's statements right, and the government could not, is incredible. After the court translator gave the flawed translation of Mr. al-Bahlul's statement, Col. Brownback interrupted him and said to his fellow members of the commission that they must not take into account the statements of Mr. al-Bahlul. The prosecution quickly jumped up and took exception with Mr. Brownback.
It felt like chaos was breaking loose. Brownback at some point even held his face in his hands and they took a recess.
Now, how do we interpret this? Here we are two years later and the U.S. government is not prepared to appropriately handle the case against a man who appears to be willing to admit to being a member of Al Qaeda. The hearing with Mr. al-Bahlul should have been the easiest one. But the translation was so poor that English-speaking people like me - or even like the prosecutors, defense counsel or commissioners - couldn't fully understand what was going on. An essential part of a fair system of justice is ensuring adequate translation of the proceedings. You have to ask why can't the U.S. produce world-class translators in order to prosecute an apparently self-confessed member of the Al Qaeda?
Secondly, today's hearing raised basic questions about the commission's rules as we've been saying all along. Mr. al-Bahlul's inability to review even a summary of the evidence against him, his inability to hire a Yemeni lawyer as he requested (given his profound distrust of American lawyers), as well as the way that the presiding officer handled his request to represent himself show that these rules are not working. It appears that the presiding officer was reluctant to even apply one of the few rules that is clear in this process, i.e. the requirement that Mr. al-Bahlul be represented at all times by detailed defense counsel. And, the fact that Mr. al-Bahlul's implicating statements came out in front of all the members of the commission who were then asked to disregard his possibly incriminating statements shows the pitfalls when you confuse the roles of judge and jury. In a civilian court or even in a military court-martial, the difference between the trier of facts and the trier of law is clear. But here, it is confused and commingled. No one, including the presiding officer, seems very comfortable in this made up and ad hoc system of justice. And, what about Mr. al-Bahlul's rights against self-incrimination? Do they or don't they exist? Where do we go from here?
Col. Brownback asked Cmdr. Sundel and Maj. Bridges to prepare a ""friend-of-the-court brief"" about Mr. al-Bahlul's right to represent himself as well his right to have a foreign lawyer represent him. They were instructed to ensure that they refrained from stating in their documents that they represented Mr. al-Bahlul. As of now, I guess Mr. al-Bahlul is representing himself, notwithstanding the clear rules in the military commission orders. No date was set and we'll see where this ends.
The final word: in the midst of all the chaos of the abysmal translation, and what Mr. al-Bahlul had or had not said, and what was or was not translated, the NGOs and press kept asking the question about whether or not there was an audio recording of the proceeding to consult. Let's go to the audiotape, we said. But we were told over and over again that there was no tape, only a transcript. Incredulous that this would be the case, we kept asking the question of multiple military officials, when one of them finally confirmed for us that an audio recording does exist and that it will be part of the court record. In one of the lightest moments of an otherwise intense day, one TV producer said to a military spokesperson, ""Does that mean that there is now a videotape even though you had previously told us there was no videotape?"" The official basically responded by saying that to his knowledge no videotape was produced. Who knows?
While we all laughed at the exchange, it is also notable that the system and its key spokespersons seem to be losing credibility even among its initial supporters in the group. We'll see where it all ends tomorrow. I'll keep you posted. Meanwhile the Aussie contingent is giving a barbecue because this is their last night and we're going for a swim.
Anthony
P.S. If you saw the Pentagon briefing from Gen. Hemingway today trying to clean up this mess, it was pretty clear that they were trying to outspin the stories that were coming out of Guantanamo. Then the Gitmo press corps got on the phone with him and began asking him a whole bunch of pesky questions. The wonders of technology... . And thank God we've got a free press to keep the government on its toes.