Tag Archives: Guantanamo

Hearing delayed for Gitmo detainee

Flags wave at Camp Justice in Guantanamo Bay, Cuba, where Abd al Hadi al Iraqi is scheduled to appear before a military commission Wednesday. (Matt Yurus/Medill NSJI)

Flags wave at Camp Justice in Guantanamo Bay, Cuba, where Abd al Hadi al Iraqi is scheduled to appear before a military commission Wednesday. (Matt Yurus/Medill NSJI)

GUANTANAMO BAY, Cuba — Monday’s pretrial proceedings for Abd al Hadi al Iraqi, a “high-value target” detained at U.S. Naval Base Guantanamo Bay, Cuba, since 2007, were delayed Sunday after a closed-door meeting with prosecutors, defense attorneys and the judge.

The hearings, originally set to begin Monday, are scheduled to last two weeks. The Defense Department made it clear in a statement that the military judge was responsible for any decisions regarding scheduling.

“We thus will not comment on why he has delayed the start time of the first session on the record this week,” said Lt. Col. Tom Crosson, a DoD spokesman. He added that court proceedings likely would not start before Wednesday morning.

Such delays are not uncommon.

Another closed-door meeting will be held Tuesday afternoon to determine the schedule for the remainder of the hearings, which are due to conclude on Friday, July 31.

The Hadi hearing is expected to involve a variety of preliminary motions. The defense is expected to argue that the U.S. military commission does not have personal jurisdiction over the defendant and that certain evidence and out-of-court statements should be suppressed.

Hadi’s trial date has not been set. He is accused of being a high-ranking al-Qaida commander who allegedly conspired and ordered attacks that resulted in the deaths of at least eight U.S. service members in Afghanistan. He was captured in 2006 and held in CIA custody for at least 170 days before arriving at Guantanamo Bay.

At a meeting with reporters Sunday, Chief Prosecutor Army Brig. Gen. Mark Martins said he would not comment on the specifics of the motions.

“There’s a pretty strong principle that we don’t litigate stuff ahead of the judge,” Martins said.

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Reporting in Guantanamo

The Pentagon’s “Media Policy and Ground Rules” pamphlet for reporting on Guantanamo starts off badly and quickly veers into silly.

The bad start: Reporters may only fly to Guantanamo to cover the military commissions by using military aircraft, although they can leave on commercial planes. Carol Rosenberg of The Miami Herald noted that she had to fly via commercial plan to Washington so she could take a military flight from Andrews Air Force Base to Cuba. She used to fly from Miami to report on Guantanamo.

The turn to silly: “Etiquette” rules prohibit chewing gum, standing and stretching or sleeping in the courtroom.

What these examples demonstrate: A military culture that results in arbitrary restrictions on reporters at the whim of a public affairs officer.

The New York Times reported last week about how the media guidelines are enforced at Guantanamo, exposing the public affairs officers as petty, controlling and fearful of journalists. Through the guidelines they established, these PAOs have undermined Defense Department efforts to build relationships with the media. Recently, in announcing rules for military officials’ interactions with reporters, Secretary Roberts Gates stressed the need for aggressive reporting on the military.

He told reporters at a Pentagon briefing that The Washington Post series about problems at Walter Reed Army Medical Center “have been a spur to action for me. The kind of reporting you do … is one of the tools I have in trying to lead this department and correct problems.”

Some senior officials at the Defense Department have agreed to meet this week with representatives of several news organizations demanding the some of the Guantanamo rules be rescinded.

Much of the focus is on rules that prohibit reporters from revealing information the Pentagon decides is protected even if that information is learned from non-government sources.

Rosenberg and several other reporters were expelling from Guantanamo in May for publishing the name of an Army interrogator even though that name had been aired in numerous news stories previously – because the rules allowed only an anonymous moniker given to him in court documents.

Rosenberg and lawyers for the media companies say the rules are a violation of the First Amendment.

This week’s meeting offers an opportunity for the Pentagon to acknowledge the obvious as a start in rebuilding a damaged relationship and, more important, allowing Guantanamo reporters to do their job in the best interests of the public.

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Legal discovery in Guantanamo still a concern

WASHINGTON–When then-President George W. Bush established the Office of Military Commissions in 2004, it was well understood that the commissions would be used to try the detainees held in Guantanamo Bay without affording them the full set of rights granted to the accused in a civilian court. The Bush Administration stated that explicitly.

However, over time, as different iterations of the commissions system have been struck down and reformed, some of those rights have been reinstated. For instance, the detainees now have the right to an attorney as well as the ability to challenge their detainment . But many of the problems are caused by legal minutiae that does not easily attract public attention, and they have survived. One such troubling detail is legal discovery as it is conducted in Guantanamo Bay.

Discovery is not an esoteric element of the military court system; it’s a fundamental process any trial attorney in the United States understands well. It occurs in the pretrial phase, in which both parties can request, and even compel, the production of documents and other evidence relevant to the case—particularly if it helps a defendant fight the charges against him and even beat those charges. In civilian court, the process is nearly always uncontroversial. In Guantanamo Bay, the difficulties surrounding discovery speak to the heart of why many people believe the commissions are fundamentally unfair.

There are two persistent problems with discovery in Guantanamo, experts and participants say: One legal, one structural.

The legal problem derives from the use of one word– “reasonable.” Reasonable doesn’t sound like a particularly pernicious term, but in this instance it represents a significant erosion of the discovery process.

In civilian courts and in military courts martial, the two sides have an equal right to discovery, meaning they can both compel one another to produce whatever information they feel is relevant to the case. In the military commissions, the defense only has a reasonable right to discovery, meaning that the prosecution can decide what information it is going to turn over.

Air Force Col. David Frakt , who defended Mohamed Jawad before the military commissions, said discovery was an enormous problem during Jawad’s trial and remains so to this day.

“I’ve never encountered anything like that,” he said . “There was problems with access to witnesses. They wouldn’t even provide me with a list of witnesses.”

The Office of Military Commissions could not immediately be reached for comment.

During the pretrial hearings for Omar Khadr, a 23-year-old Canadian citizen currently being prosecuted in a military commission, in April, Khadr’s civilian attorneys frequently complained that they had only been given access to a small handful of the more than 30 people who interrogated Khadr.

Lt. Col. Darrel Vandeveld was on the team of attorneys that prosecuted Jawad, and eventually asked to be reassigned because of ethical concerns about the commissions, including discovery. Vandeveld said he fought with his fellow prosecuting attorneys over their routine attempts to deny access to witnesses. However, even in the instances in which they did make a good faith effort to provide the defense with all the available information, it was difficult because the evidence against Jawad was never compiled into a usable compendium.

“Nobody had made a discernible effort to assemble a prosecution package,” said Vandeveld. “Many documents were missing.”

One piece of evidence was a video tape of one of Jawad’s interrogations which Vandeveld believed might have shown Jawad being tortured.

“I scoured the earth trying to find this thing,” said Vandeveld. “There is no question in my mind the tape did exist.”

Vandeveld pointed to the Guantanamo Review Task Force’s final report, published in January, which stated that, in the time since he and Frakt had been assigned to the commissions, no such compendium had been produced.

“The Task Force’s initial responsibility was to collect all government information,” it read,  “to the extent reasonably practicable, relevant to determining the proper disposition of each detainee. The government did not have a preexisting, consolidated repository for such information.”

Both Frakt and Vandeveld find such a fact to be inexcusable.

“They’ve had eight years to prepare these things,” said Frakt. “There is no excuse to not provide complete, comprehensive discovery the day the charges are filed.”

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One idea: Hold terror trials at Thomson Prison

In November, a poll found that 41 percent of New York City residents thought it was a bad idea to try suspects with alleged ties to 9/11 in New York City.

The Marist College Institute for Public Opinion poll also found that 45 percent of residents thought it was a good idea. But many politicians including former Mayor Rudy Giuliani seized on the sentiment of the 41 percent and pushed the Obama administration to come up with another location.

In December, President Barack Obama authorized taking the Thomson Correctional Center in Thomson, Ill., into federal control and making it a U.S. penitentiary for the purpose of relocating some Guantanamo Bay detainees there. Charles E. Tucker Jr., who is executive director of the International Human Rights Institute at DePaul University, said the facility could solve more than the problem of what to do with detainees.

“If you close Guantanamo Bay and move people out to the Thomson facility in Illinois, I could easily imagine a federal courtroom set up there where you wouldn’t have to reinvent the wheel but could solve the court issue,” Tucker said.

The fact that federal courts are located in populous areas is one concern many have about using civilian courts to try suspected terrorists. According to the Marist poll, 34 percent said they thought holding the trial in New York City would compromise their personal safety. (Fifty-two percent disagreed.)

Tucker cited the example of the federal court building in Chicago, which is located in a densely developed and populated area. Thomson is a rural area of Illinois with a population of about 550 people.

Tucker said he thinks federal law is more than adequate to try suspected terrorists in federal court. But he acknowledged that security is a concern for not only the general population but also those involved in the trial.

“There’s no way to keep a judge’s identity a secret during a trial,” Tucker said. “They could become a lifetime target.”

Matthew Lippmann, a professor of criminology, law and justice at the University of Illinois in Chicago, said it remains to be seen whether suspects will be tried in civilian courts and, if so, where.

“Obama appeared that he would not use these [military courts] at all, would abolish them, but right now it’s unclear where these 9/11 individuals are going to be prosecuted.”

For an interactive map and more information about the sites considered for the relocation of Guantanamo Bay detainees, click here.

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In tension between military and federal justice, the potential for terrorism court

As the debate drags on over whether to try alleged terrorists held in Guantanamo Bay in military commissions or federal courts, the pressure to find a politically palatable option is building. And the government’s solution may be the creation of a terrorism court, experts say.

“I think it’s going to probably happen because they’re going to have to deal with somewhere in the neighborhood of 50 really tough cases where they’re not going to be able to prosecute these cases in the traditional methods,” said Charles E. Tucker Jr., who is executive director of the International Human Rights Institute at DePaul University.

Tucker said current federal law is sufficient to try terror suspects, referencing Attorney General Eric Holder’s testimony that hundreds of terror-related crimes have already been prosecuted in federal court.

“In my opinion, you don’t have a legal necessity for a terrorism court, and we don’t have an evidentiary necessity for a terrorism court,” Tucker said. “So that leaves political necessity.”

And Tucker said that necessity is primarily safety, which is a legitimate concern. He said trying terror suspects in federal court could pose a threat to judges, witnesses and other actors, not to mention the public.

Richard Friedman, president of the National Strategy Forum, said military commissions have looser rules to accommodate the difficulties of trying more sensitive cases, including allowing prosecutors to present evidence without divulging their sources. The Obama administration wants to avoid using them to try the alleged 9/11 plotters, including Khalid Sheikh Mohammed, though many conservatives are pushing back.

“[President Barack Obama] doesn’t use the word ‘war on terror’ deliberately because he does not want to indicate that they should be sent before a military commission, so he’s used every other word imaginable,” said Matthew Lippmann, who is a professor of criminology, law and justice at the University of Illinois in Chicago.

But Tucker said creating a terrorism court would give at least the appearance of false justice, which he said contradicts American values.

“You’re dealing with the perception that you’re meeting with a special judge that’s designed just for you. There’s a perception that you’re not getting the same kind of justice.”

Tucker said the government could look to the British appellate courts in Northern Ireland or the Israeli military tribunals to see what an American terrorism court system might look like. He said he visited the Israeli tribunals last year and described the prosecutors as “pretty demoralized.”

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Four reporters banned from military commission proceeding at Guantanamo Bay

News outlets reported that the Pentagon banned four reporters, one American and three Canadians, from covering pre-trial hearings of Guantánamo detainee Omar Khadr.

The Washington Post blog, SpyTalk, reported that the four reports, Carol Rosenberg of the Miami Herald, Michelle Shephard of the Toronto Star, Paul Koring of the Globe & Mail, and Steven Edwards of Canwest Newspapers, were banned because they “revealed the name of a former U.S. interrogator whose name is under protective order — but is widely known.” The Pentagon said publishing the name violated previously agreed upon rules that prevent identifying protected witnesses.

The American Civil Liberties Union, in a published statement, said the  “identity of the interrogator had already been disclosed in previous news reports, including an on-the-record interview the interrogator gave to Shephard in 2008.” Politico reported that Pentagon spokesman Col. David Lapan, when asked why reporters were being punished for reporting a name already made public, said any previous stories or interviews were irrelevant.

“That doesn’t change the fact that his identity was protected in the courtroom during this hearing,” Lapan said.

Jameel Jaffer, ACLU Deputy Legal Director, said that punishing reporters for disclosing information already publicly available:

is nothing short of absurd – any gag order that covers this kind of information is not just overbroad but nonsensical. Plainly, no legitimate government interest is served by suppressing information that is already well known. We strongly urge the Defense Department to reconsider its rash, draconian and unconstitutional decision to bar these four reporters from future tribunals. If allowed to stand, this decision will discourage legitimate reporting and add yet another entry to the long list of reasons why the military commissions ought to be shut down for good.

Politico reported that Lapan told the news outlets they may appeal to the deputy assistant secretary of defense for media operations, Bryan Whitman. According to the Post, Mindy Marques, managing editor at The Miami Herald, said they would appeal.

Further reading: Washington Post SpyTalk, Politico article, ACLU statement

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Omar Khadr's prosecution pushes the limits of international law

Guantanamo Bay, Cuba– Omar Khadr, a 23-year-old Canadian citizen charged with murder, conspiracy and support of terrorism whose pretrial hearings began this week, was captured by the United States in Afghanistan in 2002. Khadr was 15 at the time.

That’s not the centerpiece of the hearings; Khadr’s attorneys are asking the court to exclude incriminating statements he made because they were allegedly procured using torture. But Khadr’s age at the time of his capture remains a major concern for human rights advocates, and a point of legal contention.

Several non-governmental organization representatives here to observe the hearings believe that, at the time of Khadr’s capture, he was a child soldier. Subsequently, they contend, his rehabilitation, rather than prosecution, should have taken precedence and perhaps even blocked him from being charged in the first place.

“The detention, treatment and prosecution of Omar Khadr violates international law and flies in the face of accepted international practice,” said Jennifer Turner, an attorney with the American Civil Liberties Union, in an interview.

“Under international law, an alleged child soldier like Omar Khadr should be treated first and foremost as a candidate for rehabilitation and reintegration, not subjected to abuse and prosecution before military commission.”

The Department of Defense has acknowledged that at least 12 juveniles have been held in the Guanatanamo Bay detention facility, although human rights advocates speculate that the actual number may be higher.

Navy Capt. David Iglesias, a legal advisor to the office of military commissions and a prosecutor for commission cases other than Khadr’s, disagrees with the contention that the United States is in violation of international law. The government’s position, Iglesias said in an interview, is that the United Nations enacted the child soldier provisions to penalize countries that force children to fight.”

Iglesias, a former U.S. Attorney, also noted that the two Additional Protocols of 1977, amendments to the Geneva Conventions that concern child soldiers, have not been ratified by the United States.

The United States did ratify the Optional Protocol on the involvement of Children in Armed Conflict, but even that does not prohibit Khadr’s prosecution, according to UNICEF’s website.

Stacy Sullivan, a court observer for Human Rights Watch, acknowledged that international law does not ban the prosecution of children for war crimes. But she noted that military tribunals have not been a venue for juvenile prosecution since the Second World War.

“Even the Special Court for Sierra Leone, where a great many of the crimes were committed by children, did not prosecute children,” wrote Sullivan in an email. “Prosecutors will say that that children were prosecuted for war crimes in Germany following World War II — but the claims are ridiculous. A couple of children were prosecuted for theft, and I think maybe one for murder, but none for war crimes.”

Sullivan also noted that there are other international laws regarding children that the U.S. may have violated since it captured Khadr.

“There is a lot in international law about the detention of children,” she wrote in an email.“They must be held separately from adults, given family visits, provided a lawyer, provided education, etc… The US, of course, did not do any of this [during Khadr’s detainment] so there is no question that the US violated its international legal obligations.”

Meanwhile Iglesias contends that there is only aspect of Khadr’s case to which his age is germane.

“Where it becomes relevant is for sentencing purposes,” he said. “ If he is found guilty, the judge can take into consideration the fact that he was only fifteen years old,” when the alleged crimes occurred.

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