January 13, 2006
Avi Cover , Senior Associate of Human Rights First U.S. Law and Security Program, is in Cuba to monitor the proceedings and is reporting back on events as they unfold. He is providing updates of what he observes.
Thursday's afternoon and evening proceedings in the Guantanamo military commission room offered a powerful meditation not only on the trial of Omar Khadr, the 19-year-old Canadian charged, as an “unprivileged belligerent,” with murder, but on the trial of Guantanamo itself – and how the debate over Guantanamo’s legitimacy may be waged in the press and in the court of world public opinion.
The proceedings consisted solely of oral arguments concerning whether the chief prosecutor, Col. Morris Davis, had made extrajudicial prejudicial statements in a press conference on Tuesday that heightened condemnation of Khadr or threatened to substantially prejudice the proceedings. Despite a stirring argument by Muneer Ahmad, Khadr's civilian lawyer, the presiding officer, Col. Robert Chester, ruled that although the Chief Prosecutor's comments were unusual for a military prosecutor, he had not violated his ethical obligations and had not impaired Khadr's right to a full and fair trial, in part because he found Davis was responding to Ahmad's own negative characterizations of the military commissions and Ahmed’s attribution of unlawful conduct to the government.
The decision was probably an inevitable one but the arguments, especially by Ahmad, reinforced the great differences between the prosecution and the defense in these military commissions at Guantanamo, and suggest to me that the presiding officer, who is clearly very thoughtful and deliberate, got this one wrong. At Guantanamo, the gulf between the powerless and the powerful could not be any wider and deeper. Prisoners have been held in indefinite detention with their fates entirely unclear, with the government arguing that they are entitled to no legal rights. Those charged, and they are a small few – nine – face a system that denies to them basic fundamental trial rights recognized as essential under all legal systems. These include denying – as we have seen over the last two days - the right to counsel of choice and self-representation.
As Ahmad argued, the standard governing extrajudicial and prejudicial statements is not the same for defense and prosecution: Omar Khadr "is an individual who had not been allowed to talk to anybody," explained Ahmad. "He couldn't even give his name and say 'I am here.'"
Chester said, however, that Ahmad's statements to the press that the United States had tortured Khadr, that "the proceeding is a sham," and "the accused will not get a fair trial" were highly prejudicial and this allowed prosecutor Davis to respond and rebut the charges. Ahmad argued to no avail that his characterizations could hardly be said to have caused the government undue or unfair prejudice. Indeed, one of the main arguments made by the prosecutors in defense of their statements was that the chief prosecutor needed to respond to a journalist's description of Mr. Khadr as a "fresh face in the full bloom of adolescence." Davis said such a portrayal was "nauseating," that Khadr was "guilty" and a "terrorist," and "When these guys went to camp, they weren't making s'mores and learning how to tie knots."
These arguments over prosecutorial misconduct arising from public statements are a microcosm for the much larger battle over what Guantanamo is and how it is depicted, not only in the courts but in the press and in the court of public opinion. In this day and age, I don't think it's possible that the trial would be conducted only in the courts and not in the press. Indeed, in the detention and interrogation saga at Guantanamo and in the rest of the world, the media has played the most critical role of revealing wrongs.
One of the constant complaints heard down here from military press officers is that television stations continue to use footage of the long-closed Camp X-Ray, instead of Camp Delta. This may well be a valid complaint. But very few media (and none of the human rights and civil rights groups) have been permitted access to Cap Delta. There have also been complaints that human rights groups, lawyers and the press focus too much on allegations of abuse and conditions of confinement. But again we have not been afforded sufficient access to say otherwise – and numerous instances of abuses and torture, which had previously been denied by government officials, have been confirmed in thousands of pages of government documents that have now been made public. At the same time, we are of course repeatedly reminded that al Qaeda too knows how to play the media game, and that their manual advises those captured to allege torture.
And so the battle will continue over these commissions, over Guantanamo itself, and over the detainees' treatment. This will be played out in the commission room here at Guantanamo, in the U.S. federal courts and ultimately the Supreme Court; it will also be played out in Congress, in the newspapers, on television and on the Internet.
The pretrial proceedings for Mr. al Bahlul (Maj. Tom Fleener met with him for a brief twenty minutes on Thursday morning) and Mr. Khadr are in recess. It is unclear – as with everything about these commissions – when commissions may resume. As I write I have just learned that the United States has moved to dismiss the Hamdan case from the Supreme Court because of the recently passed Detainee Treatment Act, which limits federal jurisdiction over the military commissions, so who knows how that impacts all of this. Uncertainty reigns.
I should add that despite the surreal and chaotic feel that pervades everything associated with the military commissions, everyone involved in the proceedings acted with professionalism. We were treated with nothing but respect from all military personnel down here and I had some of the most stimulating discussions about law, international affairs and human rights that I have ever had, here in Guantanamo. On behalf of Human Rights First I would like to thank the Office of Military Commissions for allowing us to observe proceedings and look forward to future visits at Guantanamo when we may be able to visit Camp Delta. I would also like to thank the American Constitution Society for inviting Human Right First to post these entries on its website as well.
I have to run, or I will miss my flight to Andrews Air Force Base.