April 4, 2006 – Open Questions Remain on Use of Torture Evidence

Military Commission Trial Observation
Human Rights First, at the invitation of the Department of Defense, is an official observer at the military commissions held at the U.S. Naval Base at Guantanamo Bay, Cuba.

Priti Patel – a lawyer at Human Rights First in the U.S. Law and Security Program – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. She is providing updates of what she observes.


April 4, 2006

Open Questions Remain on Use of Torture Evidence

In spite of the oral arguments in the Supreme Court last week in the case of Hamdan v Rumsfeld, a case which challenges the legality of the military commissions as they are currently constituted, the proceedings are moving forward. Today, I observed the pre-trial hearing for Abdul Zahir, the first Afghan to be tried before the military commissions. Zahir’s hearing raised a number of concerns, some which have plagued the commissions since their inception. But before I get to those, I wanted to mention something Col. Dwight Sullivan, the Chief Defense Counsel for the Military Commissions said today. Col. Sullivan was asked about Military Commission Instruction 10 – issued on the eve of the Hamdan oral arguments – which prohibits the admission of evidence obtained under torture. Col. Sullivan said Instruction 10 leaves open a number of troubling questions, including who bears the burden of proof for showing that the evidence was obtained under torture. Another open question is whether evidence obtained under unlawful coercion would be allowed into the proceedings.

Now on to Abdul Zahir. Zahir is about 5’ 6”, with black curly hair and a short black beard. He is accused of conspiring with al-Qaeda, aiding al Qaeda and attacking civilians in Afghanistan. Right at the beginning of the proceeding, the Presiding Officer in the case, Col. Robert S. Chester, raised concerns about translation both of the hearing itself and of the charges against Zahir. It turns out that Zahir speaks Farsi and the government had not provided for a Farsi translator. The defense offered to have its personal translator translate the entire proceedings in order to move the commission process forward. Although in the end the defense translator was used, as Col. Chester said, it is not the responsibility of the defense to provide a translator for the commission proceedings. In addition, the prosecution had failed to provide Zahir with a translation of the charges against him in his preferred language, Farsi. (They had provided him a copy of the charges in English, Arabic, and Pashto.) No one from the Office of Military Commissions could tell us why an appropriate translator was not made available and what the mix up had been. Now, this is a problem that we and others have been highlighting since the inception of the military commissions proceedings. Given the resources at the disposal of the the United States in these proceedings, and the fact that difficulties arising from a lack of experienced translators were clear back in August 2004, it beggars belief that there wasn’t an appropriate translator in the proceedings room today.

After Col. Chester addressed the issue of translation, Zahir, through his detailed military defense counsel, Lt. Col. Thomas Bogar, waived a reading of the charges and reserved entering a plea. Lt. Col. Bogar then conducted the voir dire of Col. Chester. During the voir dire, Lt. Col. Bogar asked Col. Chester what sources of law he would look to for application in military commissions. Col. Chester said that he would look to international law, military criminal law, including the Uniform Code of Military Justice, and federal criminal law and procedure. Col. Chester added this comment: people always say the procedural rules for these commissions aren’t fleshed out yet and that though the bodies of law he had cited were not necessarily controlling, they were places smart people would look to flesh out the procedural rules of the military commissions. Col. Chester would not “speculate” he said, on the sources of law that would actually control the proceedings. In making this statement, Col. Chester appeared to contradict what the U.S. Solicitor General said just last week in the Hamdan Supreme Court oral arguments: the laws of war are applicable to the military commissions. The exchange between Lt. Col. Bogar and Col. Chester is another window into the deeper problem underlying the military commissions system – the ad hoc rules of the military commissions give little clarification or guidance on the sources of laws that apply and govern the proceedings.

One last observation, another response from Col. Chester to Lt. Col. Bogar’s voir dire: Col. Chester said he had read the news accounts of the Hamdan oral arguments and that the “Supreme Court will tell us what to do.” Even though the Supreme Court has not yet spoken – and even though the Court’s decision is expected as soon as this summer –the commission hearings are proceeding.

Tomorrow, I expect to observe the hearing for Omar Ahmed Khadr, in which his defense team is expected to raise a number of legal issues.

Published on April 4, 2006


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