The Anatomy of an Unfair Trial

FILE - In this Thursday, May 5, 2014 file photo, Mohammed Fahmy, Canadian-Egyptian acting bureau chief of Al-Jazeera, appears
FILE - In this Thursday, May 5, 2014 file photo, Mohammed Fahmy, Canadian-Egyptian acting bureau chief of Al-Jazeera, appears in a defendant's cage along with several other defendants during their trial on terror charges at a courtroom in Cairo, Egypt. An Egyptian court has convicted three journalists for Al-Jazeera English on Monday, June 23, 2014, including Egyptian-Canadian Mohamed Fahmy, and sentenced them to seven years in prison each on terrorism-related charges. (AP Photo/Hamada Elrasam, File)

Sentencing a political opponent to death after a show trial is no different to taking him out on the street and shooting him. In fact, it is worse because using the court system as a tool of state repression makes a mockery of the rule of law. Egypt's constitution guarantees the right to be presumed innocent. And yet in a recent case, an Egyptian judge -- after a "trial" lasting 100 minutes -- sentenced 529 Muslim Brotherhood supporters to death. Egypt's constitution also guarantees freedom of speech, yet many journalists languish behind bars.

Three journalists working for the Al Jazeera English news network -- Canadian Mohamed Fahmy, Australian Peter Greste and Egyptian Baher Mohamed -- are among them. Mr. Fahmy used to work for CNN and the New York Times. Mr. Greste worked for the BBC and had only been in Egypt for a few days before his arrest. I am Mr. Fahmy's lawyer and have had contact with him in Egypt. I have studied the case file, read the reports of trial observers who were at each court session, and read the judgment that sentences the journalists to lengthy prison terms of seven years or more. It is clear beyond doubt that their trial was unfair, and their conviction a travesty of justice.

What does the Egyptian state, through its prosecutors and judges, charge? That these three men promoted and gave material support to the Muslim Brotherhood group that they are members of; and that they produced false news that harms Egypt's reputation and its national security. The judgment convicts them on all counts and finds that "through their actions, [they] had compiled audiovisual film material and falsified untrue events to be broadcast by a satellite channel in order to stir conflict within the Egyptian State." More specifically, the judges condemn them for betraying "the noble profession of journalism" by "portraying the Country -- untruthfully -- to be in a state of chaos ... internal strife and disarray." This sinister plot was apparently orchestrated "upon the instructions of the ... terrorist Muslim Brotherhood Group" headquartered at a Marriott hotel suite off Tahrir Square.

The story is completely fabricated. There was no Marriott "cell" -- the journalists simply worked from a hotel room. There was no plot -- the journalists had never even met the 14 alleged Brotherhood members they were charged with until they saw them in court on the first day of trial. There was no false reporting about chaos in Egypt -- there was plenty of chaos to report. But how, in the modern age, can a state put on such sham proceedings, open to the world, and get away with it? What logistics are involved in establishing a kangaroo court to silence critics? This trial provides a guide to how it's done.

The first lesson in how to pull off a show trial is that it helps to have antiquated laws that criminalize ordinary (and necessary) speech. In Egypt, it is a crime to "insult" the state's institutions or spread "rumors" that harm the country's reputation. A broad interpretation of terrorism allows plenty of other speech to be captured as well.

Next, you need the right judge. No government intent on persecuting its critics will want to leave the outcome of a trial to chance. In the Al Jazeera case, a panel of three judges presided over the trial, with the chief judge wearing black sunglasses throughout the proceedings. The case should have been assigned to a judicial panel by a group of judges that form the court's "general assembly." But in this case, a special order was made to select the judges. Even the prosecutor was a personal pick. Egypt's chief prosecutor -- Hisham Barakat -- was selected by the last President, and he put his son in charge of the case.

What else does the Al Jazeera case teach us is needed for show trials? You must present some sort of evidence so that it looks like a real case, and if you do not fabricate it then at least make it secret or irrelevant. Here there were many hundreds of pages in the case file devoted to listing seized equipment showing the allegedly terrorist nature of the plot -- the offending items being nothing more than Mac laptops, Sony cameras, memory sticks and standard video-editing software. At trial, prosecutors proceeded with what can only be described as a surreal presentation of video footage painstakingly played for hours to the court. Most of the videos predated the timeframe on the indictment, came from unrelated TV channels and covered ordinary events. This included holiday snaps, horses galloping in a yard, a BBC program about the Westgate Mall terror attack and a report for CNN on Gaddafi's palaces.

Not a single digital or hard copy piece of evidence showed the journalists were in any way linked to the Brotherhood. Not a shred of evidence showed that any of the journalists gave the Brotherhood money or other material support. There was not even an allegation by the prosecution that any particular video played by Al Jazeera had been doctored, let alone proof that it was so.

The judgment makes it sound like there was relevant evidence through witness testimony -- eight prosecution witnesses in total. But on a closer reading, it becomes clear that only one witness is even relevant to the case against the journalists (the others only giving evidence about the search that was carried out or testifying about other defendants). And who is this witness? An intelligence officer named Ahmed Hussein who -- according to the judgment -- confirmed the prosecution's version of events through "serious investigations that he personally carried out and using his confidential sources." How convenient: the "investigations" and "confidential sources" are never revealed.

Of course, no real subversion of justice would be complete without a wholesale denial of due process for the defense. Here, the judge denied bail for no good reason and then told the defense to pay $170,000 to view the video evidence that would be presented against them. Mr. Greste was denied an interpreter for part of the proceedings. The presumption of innocence was compromised even before the trial, when the authorities videotaped the journalists' arrest and replayed it on TV against sinister background music from the soundtrack of "Thor: The Dark World." It is available on YouTube and has to be seen to be believed. The journalists were then paraded in prison uniforms in a cage during the course of the trial.

A final key ingredient in this show trial was the use of religious references to demonize the defendants. The prosecutors used verses from the Quran to describe the activities of the journalists and, in due course, the judges followed their lead in the final judgment, finding that "Satan joined [the journalists] in the exploitation of this media activity to direct it against this country."

In truth, the Egyptian government did not really try to hide its intent in initiating this prosecution. The questioning by investigators focused on blatantly political questions including such queries as: "What's your opinion of the Muslim Brotherhood?" "What do you think of ex-president Mohamed Morsi?" "What do you think of the June 30th revolution [and] the new constitution?" Ironically, the answers criticized Morsi and showed respect for the current regime -- Fahmy had even taken part in the mass march against Morsi that put President Sisi in power! But the answers did not matter much. This was a battle for Egypt's identity, and Al Jazeera and Qatar would be taught a lesson for supporting the Brotherhood in Egypt. One prosecutor even admitted as much to Fahmy in a cigarette break during questioning, telling him: "It's just bad timing, this is all about Qatar and Al Jazeera, nothing to do with you."

Egypt has signed up to the International Covenant on Civil and Political Rights, a human rights treaty that functions as a "bill of rights" at the international level. Like Egypt's own constitution, this protects freedom of speech and guarantees the right to a fair trial. Free speech means that reporting that harms a country's image should not be criminal, especially when -- as in this case -- there is no evidence that it is false, let alone knowingly so. Under both international and Egyptian law, a fair trial means independent judges, the need for evidence of guilt beyond a reasonable doubt, and due process. But all of this was ignored in the journalists' case.

In June 2013, I headed a delegation from the International Bar Association -- the largest association of lawyers worldwide -- to advise on reforming Egypt's judicial system and constitution. Our report criticized attempts by President Morsi's government to silence critics by having them locked up and recommended reforms to the country's judiciary. By the time we were to launch the report, a new government had come in under interim President Adly Mansour, but apparently nothing had changed. We were told to launch the report in London or risk arrest if we did it in Cairo.

The Al Jazeera trial took place during Sisi's presidency -- the fourth administration to come into power since Mubarak. It must be a devastating blow to those who took to the streets in 2011, hoping to usher in a new era that would protect their dignity and human rights. What they have seen is that since 2011, each successive regime that has come into power has allowed police and army chiefs to escape prosecution while critics of the government have been enthusiastically pursued through the courts. Under the military's rule, more civilians were prosecuted for the crime of "insulting the military" than ever under Mubarak. Then during Morsi's reign, journalists were routinely targeted for "insulting the Presidency" and '"insulting Islam," including "Egypt's Jon Stewart" -- Bassem Youssef. Now the courts are used to kill or silence those who are members of the Brotherhood or who simply work for a news network that gives it coverage.

This vicious cycle exists because the country's laws are anachronistic and fall foul of international obligations. But also because there are people within the Egyptian legal system who feel it is their patriotic duty to operate according to the system. It is ironic that the main charge against the Al Jazeera journalists is that they sought to tarnish Egypt's image -- there is little that could tarnish it more than allowing such injustices to persist. This case will set a precedent for press freedom and nascent democracies in the region, and presents President Sisi with an opportunity to show that this administration is a true new beginning. He can restore justice and hope by granting these journalists the pardon they deserve.

An Arabic version of this article is available here.