In what appears to be nothing more than propaganda
masquerading as news, the U.S. military has announced,
as Reuters described it, that it will "televise the Guantánamo
trial of accused September 11 mastermind Khalid Sheikh Mohammed and five
other suspects so relatives of those killed in the attacks can watch on the
Army Col. Lawrence Morris, the chief prosecutor of Guantánamo's system
of trials by military commission, stated, "We're going to broadcast in real
time to several locations that will be available just to victim families,"
adding that the footage would be "beamed to closed-circuit television
viewing sites on military bases at Fort Hamilton in New York, Fort Monmouth
in New Jersey, Fort Meade in Maryland, and Fort Devens in Massachusetts."
While there seems little doubt that Morris is sincere, it's also apparent
that the trial under discussion will not be taking place anytime soon, and
announcements of broadcasts designed to appeal to the families of 9/11 victims
are premature, to say the least, and more judiciously regarded as attempts
to shore up the disputed legitimacy of the commission process.
Conceived by Dick Cheney and his close advisers in November 2001 as an alternative
to either the U.S. court system or the U.S. military's own judicial processes,
the military commissions have been heavily criticized for allowing the possibility
of withholding evidence from the accused and of using evidence obtained through
torture. This latter provision was later dropped, but the possibility of using
evidence obtained through coercion remains at the discretion of the government-appointed
military judge. It should also be noted that this is an administration that
has found it notoriously difficult to differentiate between acts of torture
and acts of coercion.
The commissions have also stumbled from one disaster to another. Dismissed
as illegal by the Supreme Court in June 2006, they were resuscitated by Congress
just a few months later, but were then struck
down by their own judges in June 2007, on the grounds that the legislation
that had revived the process – the Military Commissions Act – had authorized
the judges to try "illegal enemy combatants," whereas the process
at Guantánamo that had supposedly made the prisoners eligible for trial
– the combatant status review tribunals, themselves heavily criticized for
relying on secret evidence obtained by dubious means – had only declared that
the prisoners were "enemy combatants."
Although this issue was resolved
just a few months later, in a hastily-convened appeals court, the commissions
have never, even briefly, escaped from the deep shadows cast over their legitimacy
by their own government-appointed military defense lawyers, who have maintained,
from the moment that they first investigated the new trial system in any detail,
that the commissions are, to quote just a few examples, "implements for
breaking the law" by concealing evidence of torture (Lt.
Cmdr. Charles Swift, who represented Salim Hamdan, a driver for Osama bin
Laden, in the Supreme Court case that threw out the first system of military
commissions), and rigged, ridiculous, unjust, farcical, and a sham (Lt. Cmdr.
William Kuebler, who represents the Canadian Omar
Currently mired in controversy in the case of Khadr, who was just 15 years
old when he was captured – and, it was recently revealed, may not have killed
the U.S. soldier whose murder is the key charge against him – the commissions
have fared no better in any of the other pre-trial hearings that have taken
place recently. Lawyers for Salim Hamdan have fought
tenaciously to establish that he had no insider role in al-Qaeda and should
therefore have rights as a prisoner of war, and in the last month three other
prisoners have resorted to disrupting their pre-trial hearings through a combination
of non-cooperation and pleas for justice that have done little to reassure
the wider world that the process is either valid or fair.
As I reported
last month, the first of the three to boycott the process was Mohamed Jawad,
an Afghan who, like Omar Khadr, was also a juvenile when he was seized after
allegedly throwing a grenade at a vehicle carrying two U.S. soldiers and an
Afghan translator. Dragged from his cell to attend his hearing, he told the
judge in his case, Col. Ralph Kohlmann, "My right has not been given to
me. I have not violated any international law. There are many accusations against
me … they don't make any sense … I am a human being." He added that he
"continued to be treated unjustly and interrogated, and that he wanted
the 'whole world' to know it."
Jawad was followed by Ahmed Mohammed al-Darbi, a Saudi captured in Azerbaijan
and rendered to Guantánamo via Afghanistan, who is accused of plotting
attacks on shipping for al-Qaeda. After Darbi refused to take part in the commission
process, explaining that it lacked legitimacy, his military-appointed lawyer,
Army Lt. Col. Bryan Broyles pointed
out that he had no choice but to accept his client's actions, which, as
the Associated Press put it, he described as the result of a "reasoned
Although the judges in the commissions attempted to insist that the lawyers
"must carry on with their defense even if their clients boycott,"
Broyles was adamant, as he told reporters, that Darbi's decision "should
mean … that I sit very quietly, answer the judge's direct questions, and that's
it." He added that his role in Darbi's forthcoming trial was now equivalent
to that of a "potted plant," and that he would "almost certainly"
file a challenge against any order demanding that he defend his client against
Broyles' criticism is more significant than it may at first appear, as it
highlights a conflict of interest that is genuinely troubling to defense lawyers
called upon to defend clients who subsequently refuse their services. Under
the terms of their military contracts, they are supposed to follow orders and
insist on defending the men, even though they refuse counsel, but as civilian
lawyers they could have their licenses revoked if they attempt to defend clients
who have fired them.
This conflict of interest has arisen in the commissions before. In their first
incarnation, before the Supreme Court ruled that they were illegal, two of
those charged – Ali Hamza al-Bahlul, a Yemeni whose pre-trial hearing is expected
imminently, and Ghassan al-Sharbi, a Saudi who has not yet been charged under
the new system – refused to be represented by the lawyers assigned to them,
Maj. Tom Fleener and Lt. Cmdr. William Kuebler, who now represents Omar Khadr.
In an article
in GQ last summer, Fleener and Kuebler both explained that they were
unable to find any justification for the administration's insistence that the
prisoners were not allowed to represent themselves. As Sean Flynn noted, "The
right to self-representation [has] been a codified tenet of American law for
217 years. Under established rules, whether a man can competently defend himself
is irrelevant; he need only be competent to make the decision to represent
himself." Kuebler believed that Sharbi was competent to make that decision.
"Therefore," Flynn continued, "Kuebler believed he had an ethical
obligation to step aside. A lawyer can't force himself upon an unwilling client,
and no credible court would ever allow such a thing. To do so would be to replace
a vigorous defender with a prop, an actor in a charade that only mimicked a
Fleener faced a similar problem in the case of Ali Hamza al-Bahlul. He told
Flynn, "The concept of compelled representation has always bothered the
crap out of me. You just don't force lawyers on people. You don't represent
someone against his will. It's never, ever, ever done." Flynn then explained,
"The reason it's never done is that it undermines the concept of a fair
trial. When a man's life or liberty is at stake, he gets to decide who will
speak for him. That's the way American courts work, have always worked.
To eliminate that right is to begin to transform a trial into a pageant."
On April 10, when a third prisoner refused legal representation in his trial
by military commission, what appeared to be a trend began to attract the interest
of the world's media. Ibrahim al-Qosi, a Sudanese prisoner accused of working
as an al-Qaeda operative, told
Air Force Lt. Col. Nancy Paul, the judge at his pretrial hearing, that "he
did not want a lawyer and would not attend future hearings because he did not
consider the court legitimate," as the AP described it. "I do not
recognize the justice or the lawfulness of this court," he said, adding,
"What is happening in your courts is in fact a sham, which aims solely
that the cases move at the pace of a turtle in order to gain some time to keep
us in these boxes without any human or legal rights." As the AP report
continued, "He later removed the headphones used to hear the translator
and said he would participate no further, declining to answer the judge's questions,"
and saying, "I will leave the field and you can play as you want to play."
Although Brig. Gen. Thomas Hartmann, the legal adviser to the commissions'
convening authority, attempted to shore up the ailing process, pointing out
that the commissions' rules "provide for the process to move forward whether
or not the accused chooses to participate," and defending the trials as
"extraordinarily fair by any norm" and providing "substantial
protections," attorney Neal Sonnett, who monitors the commissions for
the American Bar Association, explained why proceeding with trials without
the defendants being present would be potentially fatal for their perceived
legitimacy. "If all these cases are going to proceed with empty chairs,"
he said, "what has already been called a kangaroo court will just be highlighted
as really a kangaroo court."
It later transpired that Qosi's defense lawyer, Navy Reserves Cmdr. Suzanne
Lachelier, had not even been able to meet her client. As Carol Rosenberg explained
in the Miami Herald, she had asked the judge "to help her gain
access to Qosi's cell to try to persuade him – face to face – to accept her
services. The judge refused. Prison camp commanders have said such access is
against Pentagon policy."
With the judge insisting that the case proceed as planned, and Lachelier left
to consult the California bar to discover whether, as with the concerns of
Kuebler, Fleener, and Broyles, her license will be at risk for representing
someone who fired her, the time was clearly ripe for a morale-boosting exercise
by the authorities, which is where, I presume, the idea for the statement about
televising the 9/11 trials arose.
What makes the announcement particularly premature is that those who have
been studying the commissions' recent progress – or lack of it – know that
the major obstacle preventing even the pretrial hearings of Khalid Sheikh Mohammed
and his alleged accomplices from proceeding is the fact that they do not yet
have the required legal representation. Just last month, Col. Steve David,
the commissions' chief defense lawyer, explained that, unlike the prosecution,
which has a full roster of 30 lawyers, he has only nine lawyers on duty, who
are already struggling to cope with their caseload.
It was, however, also ironic that the military's announcement almost immediately
backfired when one of the few military lawyers assigned so far – Navy Capt.
Prescott Prince, who was recently appointed to defend Khalid Sheikh Mohammed
– added his own criticisms of the commission process to the ever-growing list
of insider complaints. As Reuters described it, Prince "said he doubts
the defendants can get a fair trial in the Guantánamo court because
it accepts hearsay evidence that may have been obtained through cruel and dehumanizing
means," and also pointed out that the Geneva Conventions ban "acts
of violence or intimidation."
He also explained, in Reuters' words, that, "if the trials are indeed
fair, then broadcasting them widely would prove that to the world, but he worried
about setting a precedent by televising what he suspects will be show trials,"
and added, "I can just imagine American soldiers and sailors and airmen
being subjected to similar show trials worldwide."
With his talk of show trials – and his fears that members of the U.S. military
are liable to be subjected to U.S.-influenced show trials in future – Prince
joins an ever-growing list of military defense lawyers who understand that
the military commissions are both unjust and counterproductive. It is, as I
have stated before, time to shut the system down and move trials to the U.S.