Complex Questions Continue to Hinder Military Commission Progress

Sahr MuhammedAlly – a lawyer at Human Rights First in the 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.

Guantánamo Bay, May 7, 2008: Today’s hearings were in stark contrast to each other—one involved Ali Hamza Ahmed Sulayman al Bahlul, who rejected the military commission system and renewed his support for Osama bin Laden, and the other involved Mohammed Jawad, a distraught 23-year-old defendant who has agreed to participate in the proceedings for now, but who has mentally suffered from years of isolation in Guantánamo. Both proceedings had one thing in common, which has been the case for nearly every military commission hearing: how to deal with issues not addressed in the Military Commissions Act of 2006 (MCA) or the military commission rules. Today the questions were about how to share evidence, including classified evidence, with a defendant who has chosen to represent himself; whether a judge has the authority to rule on allegations of mistreatment; and whether a judge can order a change in conditions of confinement.

Rejection of the Military Commission Proceedings

Ali Hamza Ahmed Sulayman al Bahlul, Osama bin Laden’s alleged media director, has been charged with conspiracy and solicitation to commit murder of protected persons; attacking civilian objects; murder in violation of the law of war; destruction of property in violation of the law of war; terrorism; and providing material support for terrorism.

At his arraignment today, a defiant al Bahlul walked into the courtroom wearing a greenish-tan uniform. He sat alone at the defense table. His appointed military counsel, Air Force Major David Frakt, a paralegal, and an interpreter sat at the table behind al Bahlul. For the observers, this appeared to be a sign that al Bahlul did not want counsel to represent him.

Judge Col. Peter Brownback began the proceedings, but al Bahlul motioned with his hands that he would not answer. When Major Frakt stood up to announce his credentials to the court, al Bahlul motioned to Major Frakt to sit down. Al Bahlul requested paper and a pen and wrote something in Arabic. Al Bahlul’s writings were marked as a defense exhibit. He asked the translator to read his writings to the court. After a short recess so that the translator had time to go over the writings, the judge instructed that al Bahlul’s writings be read into the record. The papers had the following inscriptions:

* Declaration of rejection of the court

* Declaration of continued allegiance to Osama bin Laden

* Declaration of boycott

Judge Brownback described for the record al Bahlul’s previous appearances before the military commissions. In 2004 and 2006, al Bahlul requested that he be allowed to represent himself. At a hearing in January 2006, al Bahlul wrote on a piece of paper the word “muqataa” in Arabic and then in English “boycott, boycott, boycott.”

Judge Brownback said that the MCA and the military commission rules permit a defendant to represent himself provided that his behavior comports with the decorum of the military commissions and that he follows the commission rules.

Judge Brownback asked al Bahlul if he wanted Major Frakt to represent him. Al Bahlul sat quietly and refused to answer Judge Brownback’s questions. Major Frakt told the courtroom that al Bahlul has refused to meet with him and that al Bahlul wishes to represent himself.

Al Bahlul then requested to speak to the court and spoke for an hour. The human rights observers and members of the press, who were sitting in the viewing galley behind soundproof glass, were unable to hear the first ten minutes of al Bahlul’s statement due to audio technical problems. When the sound finally came on, we heard al Bahlul renouncing his Yemeni citizenship. He said that he “accepts the consequences of his actions,” denounces the regimes of Saudi Arabia, Jordan, Yemen, Kuwait, and that the war against the United States will continue.

Judge Brownback allowed al Bahlul to act as his own attorney for now, but kept Major Frakt as standby counsel. He also instructed the prosecution to brief the court on how evidence will be shared with the defendant and how issues of classified information will be handled. At a press conference after the hearing, Major Frakt said that al Bahlul’s self-representation raises a number of issues, such as whether al Bahlul can see classified evidence or how he can review case material, given the absence of computers or a law library in the prison. He also added that most of the evidence is not in Arabic.

Effects of Solitary Confinement

Mohammed Jawad, who rejected the proceedings at his March 12th arraignment, agreed to participate today but authorized counsel to represent him only for the purposes of challenging the legitimacy of the military commission system.

Jawad was arrested by Afghan police in December 2002 before being transferred to U.S. custody in Bagram and then Guantánamo. He was sixteen years old on the date of his arrest. He is accused of throwing a grenade at a U.S. military vehicle in Kabul, Afghanistan on December 17, 2002, and injuring two American soldiers and their Afghan translator. He has been charged with attempted murder and causing bodily injury.

Air Force Major Reserve David Frakt, who was assigned to represent Jawad on April 28, told the court: “Mr. Jawad is an innocent man. He has been held for five years. He was a homeless boy wrongfully accused and beaten into confession by the Afghanistan police.” Frakt also told the court that Jawad was mistreated when he was forced to appear for his arraignment in March and was punished for his behavior afterwards. At the press conference, Major Frakt elaborated that certain comfort items, such as Jawad’s blanket, were taken away from him. Defense counsel asked the judge to rule on Jawad’s mistreatment. This appeared to be the first time that a military commission judge was asked to provide recourse for mistreatment.

Defense counsel also asserted that because Jawad is depressed, desperate, and angry he cannot properly assist in his defense. He added that the judge should order that Jawad “be moved to a restful place to rehabilitate” and that he be given a mental health evaluation. It remains to be seen whether the judge will be permitted to order any change in Jawad’s conditions of confinement.

A similar concern has been raised by Salim Hamdan, whose lawyers have argued that lengthy solitary confinement and detention in Camp 5 and 6 have affected Hamdan’s mental health and his ability to assist in his defense. To date, there has been no decision on the motion. Camp 5 and 6 are maximum security prisons where detainees are confined to a 8 x 10 foot cell for 23 hours a day. There is no natural air or sunlight and artificial light is on 24 hours a day.

During the proceeding, Jawad appeared agitated and told the court that he had “been punished a lot.” He talked about how he was woken up by guards in the middle of the night and interrogated for long hours. He also mentioned how he was moved from different camps or different cells and then said that he could not remember how long he was in a particular camp. He seemed to have lost track of time. He also said that he was promised books so he could study and told that he would be transferred to Camp 4, where he would be able to mingle with other detainees, but that these promises were not kept.

During the hearing, he appeared confused and held his hand to his head several times while stating that he could not remember. He asked why he was in Guantánamo and kept saying that he wants to go home. He told the court that he is “a human being” and asked the court whether this was “justice.”

The issues that arose in the al Bahlul and Jawad proceedings today – questions regarding classified evidence, self-representation, and a judge’s authority to rule on mistreatment and conditions of confinement – occur often in the ordinary criminal justice system, where judges make rulings based on statutes and case law. However, in the new military commission system, there is no precedent and Guantánamo judges are making up the rules as they go.

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Published on May 8, 2008

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