Bin al Shibh Appears in Court but Legal Uncertainties Loom

Anthony S. Barkow is a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (http://www.prosecutioncenter.org/), and was a federal prosecutor for 12 years, most recently serving as an Assistant United States Attorney in the United States Attorney’s Office for the Southern District of New York, where he handled some of the most significant terrorism and securities fraud prosecutions in the United States.

Guantánamo Bay, September 23, 2008: Yesterday, Military Judge Marine Col. Ralph Kohlmann held a pretrial hearing for the five defendants facing capital charges in connection with the September 11 attacks. One of the defendants, Ramzi bin al Shibh, refused to leave his cell to attend the hearing. By the end of the day—largely occupied by legal wrangling over how to make bin al Shibh appear—Judge Kohlmann ordered that bin al Shibh be brought to court the following day, by force if necessary.

The hearing revealed an odd internal split among government lawyers. The prosecution’s position was that bin al Shibh should be forced to appear. But the detention facility commander (and JTF Gitmo lawyers) apparently reasoned that bin al Shibh could not be forced to attend absent a court order, thus shifting to the court the obligation–and the blame and accountability–for any “forcible extraction” of bin al Shibh from his cell. The defense, seeking to avoid a “forcible extraction,” asked the judge to adjourn all proceedings against bin al Shibh pending a competency evaluation. They assert he has severe mental health issues, which have been exacerbated by the use of psychotropic drugs and by his extreme confinement conditions, and which they further imply may stem partly from the torture bin al Shibh alleges he endured.

In a bizarre turn of events reflecting the ad hoc nature of the military commission system, bin al Shibh’s four co-defendants were enlisted in the court’s effort to secure his presence. The court approved a request by the lead defendant, Khalid Sheikh Mohammed to write a note to bin al Shibh. Ultimately, all four of bin al Shibh’s co-defendants wrote separate notes, each signed by all the others. The notes urged bin al Shibh to come to court, pointed out that his absence had slowed the proceedings (in fact, the judge suggested that if bin al Shibh persisted in refusing to participate, he would consider severing his case from the others’), told him that all five defendants should remain together in one case, and advised him to come to court voluntarily in order to avoid forcible removal from his cell.

In federal court, criminal defendants who refuse to come to court may be compelled to appear. Bench warrants may be issued for defendants who have been released on bail, and federal marshals – on their own or at court order or suggestion – may secure the appearance of defendants in pretrial detention, whether or not the defendants wish to appear. But in Guantánamo, where rules of law are created each day, a defendant’s co-conspirators are enlisted in the effort to secure his appearance.

But the comparison between federal courts and military commissions may not be tenable in this context. Compelling a defendant to appear in federal court is justified because defendants receive the full gamut of procedural and substantive protections, and they are not typically subjected to abusive interrogations or extreme conditions of confinement. But in Guantánamo—where many detainees have made allegations of torture and abuse, and some have experienced near-total isolation for almost seven years—compelling a defendant’s appearance in court has a different connotation.

Bin al Shibh’s attorneys suggest in their written pleadings that his fragile mental condition may be the result of torture. The Bush Administration has confirmed the use of “alternative” interrogation techniques on the high-value detainees held in secret CIA custody. In addition, reportedly a former detainee who was held in the cell next to bin al Shibh during his detention in Jordan alleges that bin al Shibh accused Jordanian officials of subjecting him to electric shock, sleep deprivation and forced nudity. If some or all these allegations about bin al Shibh’s treatment are true, then compelling him to come to court – likely transported in shackles and wearing a black hood over his head – may be so mentally and psychologically traumatic that the court resorted to enlisting the “cooperation” of his co-conspirators in encouraging him to voluntarily appear.

The peer pressure exerted by bin al Shibh’s co-defendants was effective. Bin al Shibh voluntarily reported to court early this morning and sat with his co-defendants without wearing shackles or handcuffs. In fact, he used his appearance to defend his mental competence and to unleash a tirade against his attorneys, accusing them of lying to him and ignoring his wishes.

Bin al Shibh’s outburst highlights a central problem with these proceedings. Although Judge Kohlmann may have the power to force bin al Shibh to appear in court, he cannot compel bin al Shibh to accept counsel. Given the length of time bin al Shibh has been detained, and the allegations of torture he has made, it should come as no surprise that his attorneys may have difficulty gaining his confidence and trust.

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Published on September 24, 2008

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