ACLU Executive Director Anthony D. Romero and staff attorney Hina Shamsi were in Guantánamo this week. Here's their report from the facility the military calls "Camp Justice":
ADR (midnight, June 6): We just returned to the Combined Bachelors' Quarters (where we are housed) after a grueling and appalling day observing the arraignment of the five former CIA prisoners the military calls "high value detainees." We hadn't expected the day to be this long, but the post-arraignment press conference and a post-mortem with the defense counsel "detained" us longer than we had originally thought.
We needed a break after what we saw today. We needed to share the fellowship with military JAG lawyers and civilian defense counsel after being first-hand witnesses to one of the most sorry moments in the history of American justice.
This was my second time in Guantánamo. My first time here was for the very first arraignment of the first round of detainees the government tried to charge in August 2004.
I was appalled then. I am disgusted today.
HS: My day actually started on a (somewhat) positive note, at a hearing in the case of Ahmed Mohammed Ahmed Haza al Darbi, a Saudi Arabian charged in connection with a planned (but never executed) attack on vessels off Yemen and the Strait of Hormuz. Although the proceeding was overshadowed by the absence of the defendant -- he is boycotting what he sees as an illegitimate and unfair trial -- the judge, Colonel James Pohl, was very firm with the government about his expectation that it would turn over to the defense materials that would help the defense prepare its case. That's what you'd expect from an independent judiciary but it's not always what you get at Guantánamo. The day went swiftly downhill after that, when I went to sit in on the arraignments.
As one of a team of ACLU attorneys who have observed every single one of the military commission hearings over the years, I thought I was pretty hardened to the chaos, uncertainty and ad hoc decision-making that have been the hallmark of these proceedings. But the sheer cynicism and manipulation on display today were a new low.
ADR: You can read the articles about what was said in the hearing by Khalid Sheikh Mohammed (KSM) and his four other co-defendants. No doubt much of the coverage will focus on KSM's statement that he wished to be martyred, and his and the others' refusal to accept the legal representation of either government JAG lawyers or the civilian defense lawyers that the ACLU and the NACDL procured to defend them as part of our John Adams Project.
You will no doubt read about their statements agreeing to accept whatever fate was thrust on them by a system that was fundamentally flawed and unfair from the outset.
What may not come across is the extent to which what we observed was nothing more than a legal farce, with all the trappings of "secret show trial." I know that may sound like an oxymoron for the civil libertarians reading this. How can the government -- after almost four years of these proceedings -- have both a "secret" proceeding and a "show trial"?
The debacle began even before the commission proceedings started. After being held for five years in isolation from each other, from counsel, and from the rest of the world, and after being tortured and (in KSM's case) waterboarded, the co-defendants were brought by the government into the courtroom together early, ostensibly to "shoot the breeze" with each other before the hearing even started.
HS: Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion.
ADR: That's where the trouble for due process began. Before today, it seems several of the defendants were ready to accept the representation of the military lawyers and their civilian defense counsel. Today, though, in the words of Lt. Jon Jackson, counsel for Waleed bin Attash, a couple of them may have been "intimidated" to get in line with those who sought martyrdom.
The government has had the defendants in custody in a secret Guantánamo location, Camp 7, since September 2006. The chief prosecutor said last night at the press conference he understood they hadn't been able to communicate with each other before today. Why the government would have allowed the accused to catch up on old times before the commencement of these proceedings after holding them in isolation from the world and apart from each other begs the obvious question. Clearly, the decision was made to allow this highly unusual meeting among co-defendants as a way to ensure that all five took the same path -- even if they wanted otherwise.
Mohammed set the tone for the five. Once he began down the path of welcoming martyrdom and rejecting his counsel, it wasn't hard to imagine how the others would proceed. David Nevin and Scott McKay, two lawyers the ACLU had retained to represent Mohammed, endeavored to intervene to protect his rights and to explain the gravity of the situation that their client faces. Their task was made all the harder because they had only met him for five or so hours before the arraignment to try to secure his trust. (The government had dragged its feet on their security clearances for months. Still, the judge denied a request to postpone the arraignment until they could establish a rapport with their client.) And when they tried to intercede and state the obvious - it wasn't clear that a man who had been waterboarded and tortured by the U.S. government, held for five years by the CIA and didn't have the benefit of having his legal rights explained to him by lawyers he trusted --d they got quickly slapped down by the military judge, Col. Ralph Kohlmann, who seemed more intent on keeping order in his courtroom than serving justice.
If only he had kept order. Those of us observing the commissions behind the sound proof glass wall, in which sound was piped in to us, could readily hear the murmur of the defendants' discussions throughout the day.
HS: At the end, there were three defendants (KSM, bin Attash, and Ammar al-Baluchi) who elected to represent themselves, with military and civilian lawyers as "standby counsel." Ramzi Binalshibh and Mustafa Ahmad al-Hawsawi also told the judge they didn't want lawyers but whether they will or not is an open issue. Binalshibh's military defense lawyer, a wonderfully determined woman named Suzanne Lachelier raised important questions about her client's ability to knowingly and voluntarily waive his rights to counsel. She learned just the night before that her client was on psychotropic drugs. Another upstanding JAG, Lt. Jon Jackson, argued to the judge that his client, al-Hawsawi, had been intimidated by other defendants into rejecting his counsel. In both cases, the judge put off a final decision until the lawyers obtained more information and filed legal papers in support of their arguments.
ADR: Another deeply disturbing and dispiriting part of the proceedings was the secrecy surrounding issues relating to the prisoners' torture in U.S. custody. It was very clear that each of the defendants had been warned before the hearing not to mention their treatment. KSM very pointedly mentioned it twice, saying at one point, "I know not to mention the torturing." And at another point saying, "five years after torturing" he was transferred to the "Guantánamo inquisition." Al-Baluchi referred to it also, and then cut himself off: "I am here after five years of torture. Okay, I won't bother you, I won't say it."
HS: I get there sometimes may be a need to keep classified information from the public for national security reasons, but it must never be a cloak for government illegality - which is what appeared to happen today. Over the course of the day, the sound (which was delayed 20 seconds for just this purpose) was cut off whenever the prisoners appeared to discuss the circumstances surrounding their treatment. It happened when Ramzi Binalshibh started to describe why he is now required to take psychotropic drugs (his lawyers only found out about this the night before). It happened again when Ammar al-Baluchi was asked by the judge whether he would accept his assigned counsel. Al-Baluchi, who was in secret detention from April 2003 to September 2006, responded, "If you gave me a lawyer the first day I was arrested, I would have accepted. Instead [SOUND CUT]." It was quite literally chilling every time that happened.
ADR: My favorite retort from one of the defendants was from al-Baluchi. When asked whether he understood that the government was offering him free legal assistance from the JAG lawyers, he responded with a simple yes. And then he added, "even though the government tortured me free of charge." Some of us had to laugh - to not cry.
HS: At the end of the day, if any question remained after all these years of military commission proceedings, it was abundantly obvious that this is not a justice system set up to arrive at the truth in any way that approximates traditional American notions of justice. We had the opportunity to show the world that the United States can deal with the deadly threat of terrorism without losing its own soul and values. And we can do so in a practical way that doesn't result in the very thing we want to avoid - creating enemies when we should be cultivating allies. That's effective counterterrorism. And that's not what we're doing.
ADR: We saw a lot of heroism today from the military defense counsel to the civilian lawyers, including two civilian lawyers working with the NACDL/ACLU project, Ed McMahon and Tom Durkin, who did their best to preserve their clients' interests but were repeatedly shut down by a judge who told them to be quiet and sit down.
But this was not in any way an American court of law, with the words torture so abundantly used and with lawyers denied the ability to assist their clients. As the government was shuttling these men to their deaths (as they are all capitally charged), America was breaking the rules by torturing people and holding them without access to lawyers for years. And then cutting legal corners at a break-neck speed.
How to fix this process? You can't. The process has to be scrapped. Now. Someone with the gumption and deep seated belief in due process and the rights of the accused -- even those accused of the worst crimes in modern history -- needs to step forward and stand for what America believes in. And the military commissions are the furthest thing from what true American patriots believe in. The fact that our government insists on barreling down this path, cutting constitutional corners, shuttling defendants possibly to their death without basic due process and concern for human rights speaks volumes about us as Americans. This is not who we are and this is not who we should be. And that, indeed, is an "injustice."