If President Obama is serious about ever closing Guantánamo, and bringing justice to any of the 239 men still held there, the chaotic events on Monday, in the first hearing of the Military Commission trial system since the President’s four-month freeze on proceedings expired, should persuade him that all that awaits him, if he proceeds with his plan to revive the trials, is ridicule, frustration and injustice.
Last month, evidently scared by the advice of paranoid officials who suggested that, in some cases, trials in federal courts might fail (and ignoring the fact that no US jury would fail to convict a terror suspect against whom the merest shred of genuine evidence could be mustered), Obama announced that he was planning to revive the Commissions.
Critics bayed in disbelief. After all, the much-criticized system, conceived by former Vice President Dick Cheney and his legal counsel David Addington, ruled illegal by the Supreme Court in 2006, and then revived by Congress, was, essentially, a shape-shifting legal quagmire, which, over six years, had led to only three convictions (of David Hicks, Salim Hamdan and Ali Hamza al-Bahlul, each of which had its own problems), the resignation of several prosecutors (including one Chief Prosecutor), the sacking of the Pentagon’s legal adviser, and a permanent state of semi-open revolt against the government in the military defense teams.
It therefore seemed implausible that Obama’s intention to tweak the existing system — by imposing restrictions on the use of hearsay evidence, or on evidence obtained through coercion — would either silence the Commissions’ many critics or lead to a functional system in which constitutional and legal experts, like the President himself, could have any belief.
Even disregarding, for a moment, complaints that the Commissions would still be a manifestation of a two-tier judicial system, in which evidence that is inadmissible in a federal court would somehow, magically, be purified, two more fundamental problems were apparent on Monday: firstly, observers were reminded that any novel judicial system that turns its back on more than 200 years of established legal history (let alone one designed primarily to secure convictions) is bound to be so full of holes that it cannot function adequately; and, secondly, the Commissions are, in any case, weighed down with the sometimes rancorous baggage of their existing history.
The first session of the court, under the new President, was convened specifically to address some of these festering issues, and descended almost immediately into chaos, as long-running disagreements between members of the defense team for Omar Khadr — the Canadian prisoner who was just 15 years old when he was seized by US forces after a firefight in Afghanistan — burst into florid life as soon as the proceedings opened.
The judge in Khadr’s case, Army Col. Patrick Parrish, held the hearing in an attempt to sort out the disputes between the lawyers, which resulted, two months ago, in the dismissal of Navy Lt. Cmdr. William Kuebler, the longest serving and most outspoken member of his military defense team, by the chief defense counsel, Air Force Col. Peter Masciola, who had also prevented Kuebler from visiting Khadr at Guantánamo.
Col. Parrish ruled that the dismissal had been made without the relevant authority and reinstated Kuebler, but on Monday, as Khadr himself was consulted, he tried to fire his entire military defense team. “Right now I can’t trust them,” he told the judge, adding, “If it was my wish, I want to erase all of them, but I don’t have any choices.” He then explained that he wanted to consult with his Canadian civilian lawyers, Dennis Edney and Nathan Whitling, who have been fighting his case for years in the Canadian courts, but they were not present. As Carol Rosenberg explained in the Miami Herald, “Under current war court rules, foreign attorneys can act as advisors but cannot defend alleged war criminals.” In the Toronto Star, Michelle Shephard also noted that the Canadian government “did not send a representative here this week as they have for past hearings.”
In an attempt to break the impasse, Col. Parrish suggested, 30 minutes into the hearing, that Khadr should “meet with his team, saying that they would put their differences aside and talk in a ‘professional and dignified’ manner,” but Khadr replied that it “wasn’t possible,” telling the judge, “That’s not true. They had a fight just this morning.”
In the end, Khadr agreed to meet with the defense team, but afterwards, when Col. Parrish pointed out that he could, if he wished, defend himself, Khadr refused, explaining that he was unable to mount his own defense. The judge then made him choose between Kuebler and Ruiz, explaining, “I am not going to allow you to go unrepresented” until the next hearing, scheduled for July 13, but allowing him to consult with his Canadian lawyers, at a later date, so that they “can help him choose a permanent replacement,” as Jane Sutton described it for Reuters. Khadr then chose to retain Kuebler, firing Ruiz and Michel Paradis, a civilian lawyer paid by the Pentagon to work on the case.
“Visibly angry,” as Michelle Shephard explained, Col. Parrish “repeatedly lambasted Khadr’s legal team,” but commended Khadr for being “well-spoken” and “professional.” As Reuters put it, he also “expressed annoyance” that a third lawyer “had already left to take a new job without notifying the court.”
Whether Khadr’s next hearing — scheduled in the hope of finalizing the issues relating to his representation — will actually take place is another matter. Col. Parrish refused to put a stay on his order, but the Obama administration has already requested another four-month hold on all pending trials, to give it more time to work out who to prosecute, and in what venue. As Khadr’s hearing stumbled on, Navy Capt. John Murphy, the new chief prosecutor, confirmed that the prosecution had “asked for an additional 120 days to complete the review process,” and added that the latest request had been filed last Friday and that two judges had already agreed to the suspension. Acknowledging this, Col. Parrish also explained that he would consider a request to delay the July hearing until September, but did not appear to be entirely happy with the prospect. “Apparently there’s going to be some changes in the rules,” he said.
Quite how Barack Obama thinks that tinkering with the rules can mend this broken circus is difficult to see. As Alexander Abdo, an observer with the American Civil Liberties Union, said, “The real question is, ‘Why are we here?’ It’s indicative of the kind of justice you get with an ad hoc system that hasn’t even decided the basic rules of the commissions because they are being changed.”
But perhaps the best line was delivered by Khadr himself, when he stated, “It’s not the first unfairness I’m going through and I’m expecting more unfairness.”
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and also see my definitive Guantánamo prisoner list, published in March 2009.
See the following for a sequence of articles dealing with the stumbling progress of the Military Commissions: The reviled Military Commissions collapse (June 2007), A bad week at Guantánamo (Commissions revived, September 2007), The curse of the Military Commissions strikes the prosecutors (September 2007), A good week at Guantánamo (chief prosecutor resigns, October 2007), The story of Mohamed Jawad (October 2007), The story of Omar Khadr (November 2007), Guantánamo trials: where are the terrorists? (February 2008), Six in Guantánamo charged with 9/11 attacks: why now, and what about the torture? (February 2008), Guantánamo’s shambolic trials (ex-prosecutor turns, February 2008), Torture allegations dog Guantánamo trials (March 2008), African embassy bombing suspect charged (March 2008), The US military’s shameless propaganda over 9/11 trials (April 2008), Betrayals, backsliding and boycotts (May 2008), Fact Sheet: The 16 prisoners charged (May 2008), Afghan fantasist to face trial (June 2008), 9/11 trial defendants cry torture (June 2008), USS Cole bombing suspect charged (July 2008), Folly and injustice (Salim Hamdan’s trial approved, July 2008), A critical overview of Salim Hamdan’s Guantánamo trial and the dubious verdict (August 2008), Salim Hamdan’s sentence signals the end of Guantánamo (August 2008), Controversy still plagues Guantánamo’s Military Commissions (September 2008), Another Insignificant Afghan Charged (September 2008), Seized at 15, Omar Khadr Turns 22 in Guantánamo (September 2008), Is Khalid Sheikh Mohammed Running the 9/11 Trials? (September 2008), two articles exploring the Commissions’ corrupt command structure (The Dark Heart of the Guantánamo Trials, and New Evidence of Systemic Bias in Guantánamo Trials, October 2008), The collapse of Omar Khadr’s Guantánamo trial (October 2008), Corruption at Guantánamo (legal adviser faces military investigations, October 2008), An empty trial at Guantánamo (Ali Hamza al-Bahlul, October 2008), Life sentence for al-Qaeda propagandist fails to justify Guantánamo trials (al-Bahlul, November 2008), 20 Reasons To Shut Down The Guantánamo Trials (profiles of all the prisoners charged, November 2008), How Guantánamo Can Be Closed: Advice for Barack Obama (November 2008), More Dubious Charges in the Guantánamo Trials (two Kuwaitis, November 2008), The End of Guantánamo (Salim Hamdan repatriated, November 2008), Torture, Preventive Detention and the Terror Trials at Guantánamo (December 2008), Is the 9/11 trial confession an al-Qaeda coup? (December 2008), The Dying Days of the Guantánamo Trials (January 2009), Former Guantánamo Prosecutor Condemns Chaotic Trials (Lt. Col. Vandeveld on Mohamed Jawad, January 2009), Torture taints the case of Mohamed Jawad (January 2009), Bush Era Ends with Guantánamo Trial Chief’s Torture Confession (Susan Crawford on Mohammed al-Qahtani, January 2009), Chaos and Lies: Why Obama Was Right to Halt The Guantánamo Trials (January 2009), Binyam Mohamed’s Plea Bargain: Trading Torture For Freedom (March 2009).
And for a sequence of articles dealing with the Obama administration’s response to the Military Commissions, see: Don’t Forget Guantánamo (February 2009), Who’s Running Guantánamo? (February 2009), The Talking Dog interviews Darrel Vandeveld, former Guantánamo prosecutor (February 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Obama Returns To Bush Era On Guantánamo (May 2009), New Chief Prosecutor Appointed For Military Commissions At Guantánamo (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), My Message To Obama: Great Speech, But No Military Commissions and No “Preventive Detention” (May 2009), Guantánamo And The Many Failures Of US Politicians (May 2009), A Child At Guantánamo: The Unending Torment of Mohamed Jawad (June 2009), Obama Proposes Swift Execution of Alleged 9/11 Conspirators (June 2009), Obama’s Confusion Over Guantánamo Terror Trials (June 2009).
I think we should just say that what we really intended as justice in Guantanamo all along was Trial by Ordeal. If you survive your seven years of isolation, torture, hunger strikes, spirit-quelling “legal” maneuvering designed to elevate and then devastate hope, if you survive all that, you must be…umm, I’m not sure…well, maybe just flip a coin…guilty, or…what was that other choice again?
Thanks, Frances. “Trial by Ordeal” is good. As far as Guantanamo and the “War on Terror” goes, I always thought “Guilt by Torture” summed things up pretty well, but on the legal side of things, I’d say “Guilt by Attrition” might be better.
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Frances, that’s one of your most moving and insightful comments here. Thanks.
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