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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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08-27-04; 9:30 P.M. - GUANTANAMO BAY, CUBA
Dear member of the ACLU family:
Everyone in the media and NGO group looked beat today; it's been a long week. [Ed.: As Mr. Romero was dictating this, the afternoon bugle call just played in the background.] But think about it from the vantage point of the members of the military commission. They too must be tired. You have to wonder how they can sustain the energy and the attention on four different cases when they go one after the other and when there are overlapping sets of facts and law. How can they be sure that the findings in one case don't taint the outcome or findings of another? To give you one concrete example, check this out:
Today's hearing was focused on the case against Mr. al Qosi. The schedule that was ultimately set for the proceedings was substantially later than the schedule set for the earlier commissions. (That delay was for good reason, which I'll get to later.) But after setting the motion schedule in the case of Mr. al Qosi, the presiding officer, Col. Brownback, talked about the "implied bias standard." He noted that since the presiding officer would be receiving papers and motions from other counsel on the very point that would be raised on behalf of Mr. al Qosi, he wanted to simply "offer" the defense counsel the opportunity to submit her motions along with the other cases, so they could all be reviewed by the presiding officer and the appointing authority at the same time. [Ed.: Once again we hear a bugle call.]
So, even though Mr. al Qosi's case was appropriately set for a later date, if his counsel was to take all the time allotted to her, she'd run the risk of having someone else's lawyers make the points on issues that might ultimately affect the disposition of her client's case. She's in a tough Catch-22: take the time you been allotted and hope that the other lawyers do a good job and don't mess it up, or give up some of the time allotted to you so that you can be sure that your client's interests are served. This Catch-22 shows why it might not be a good idea that the same panel members hear all four cases with similar facts and questions of law, since the findings in one commission may taint the outcome of the findings in another.
Mr. al Qosi's lawyer is the enormously talented and articulate, as well as charismatic, Air Force Lt. Col. (and soon to be judge) Sharon Shaffer. She is incredibly sharp and she lit up the room during her press briefing. She clearly has fire in her as well as an acute mind. She was assigned Mr. al Qosi's case in February of 2004 and one week later she requested a lawyer to assist her in the case. That request was denied. And today, she stood alone with Mr. al Qosi and his translator (who I believe is still owed some money by the government), while the prosecution team was fully constituted with three military lawyers. It didn't seem exactly fair. Interestingly, the chief prosecutor said that his three lawyers were more junior in stature than the experienced Ms. Shaffer, so the playing field was leveled.
It's also worth noting that Ms. Shaffer is the only woman to appear in all these proceedings and the racial diversity among those involved has also been surprisingly poor. Our military is one of the most integrated institutions both in terms of gender and race, and yet you wouldn't know it from looking at the folks who are involved in this process. These are issues that sometimes come up in jury selection processes in civilian courts. Whether or not it has any impact on the outcome, it does raise an appearance issue.
In any event, Ms. Shaffer was fortunate enough to receive a promotion to a higher rank of Air Force Judge but unfortunately for her client, that promotion only complicated Mr. al Qosi's case. Ms. Shaffer essentially had two jobs. You'll also note that defense and prosecution counsel are essentially "loaned" from the various armed forces to the military commissions at the discretion of the forces. Until this week it was not clear whether Ms. Shaffer would be allowed to continue with the military commission detail. She was also not sure whether she should continue, given various codes of ethics rules.
When she could not get the instruction she sought, Ms. Shaffer was forced to file a request to withdraw as Mr. al Qosi's counsel and it looked like Mr. al Qosi would be without a lawyer for this week's hearing. I guess somebody finally figured that there was a bunch of press and human rights observers attending Mr. al Qosi's hearing and that it wouldn't look so good if he didn't have assigned counsel. Ms. Shaffer miraculously received word on August 25, two days ago, that she had been given the authority to devote all her time to Mr. al Qosi's defense and that her certification as a judge would be placed on hold until her representation in this case was complete, thereby addressing the ethics issues. Because of the confusion about Mr. al Qosi's counsel and her understandable inability to prepare for the commission hearing this week given the ambiguity of her status as detailed counsel, not to mention their denial of her request for an assistant, Mr. al Qosi's case will be later out of the box than the others.
What's clear is that the delay is due to the lack of resources that the defense counsel has received. Given the asymmetries of the resources between the prosecution and the defense one has to wonder if the government is more interested in prosecuting these crimes than in having a fair and impartial trial. We need to muster the political will in the various armed services to ensure that the defense counsel has the resources it needs to represent the interests of the accused. As I said before, this process isn't about them -- it's about us. It's about our values, what we value and how we value it. And unless we resource the defense counsel adequately, we're going to put good folks in uniform like Ms. Shaffer in impossible situations. Let's also remember that the good men and women in uniform who are prosecuting these cases will also be disserved and undermined if the entire process appears unfair and if the playing field remains unequal.
Finally, the chief prosecutor, who briefed the media today in an exciting give-and-take, seemed untroubled by the appearances or reality of the resource asymmetries. Given how obvious the problems are to all of us who are observing the military commissions, one must wonder whether he was merely posturing or whether he is so close to the process and so intent on receiving a conviction that he can't step back and see some of the structural problems that are evident with the commissions.
Finally, let me point out that the various groups issued a joint statement today (linked on this page) detailing our many concerns and asking that the government replace this fundamentally flawed system with one that works. I'm not sure we can fix the many problems with this system and our government should be able to admit a mistake and decide that it would be much better to proceed through established procedures in the military justice system, which is the best system of military justice in the world. It's also great that the various groups - the American Bar Association, Amnesty International, Human Rights Watch and Human Rights First - worked together as one team, demonstrating both depth and a real commitment to making a difference. My colleagues from other organizations are truly world-class and have taught me a great deal on issues that can be complex. I hope I accomplished something of the same with them. But, I want to tell the proud card-carrying members of the ACLU that no matter how good or how strong the ACLU is, these issues are much too big for us to go it alone and our partners in this effort also play a critical role.
Talk to you tomorrow.
Anthony
P.S. Tomorrow's entry will be the last, as I head out of Gitmo tomorrow afternoon. My final dispatch will not focus on the commissions, but will tell you about some of the landscape and social dynamics I've been able to observe while here. This black box of Gitmo has become a little bit more illuminated for all of us.