Blog
Published on April 9, 2008
Frank Kendall – Human Rights First volunteer consultant – is in Cuba to monitor the proceedings and is reporting back on events as they unfold. He is providing updates of what he observes.
Guantánamo Bay, April 8, 2008: My name is Frank Kendall, and I am an uncompensated consultant to Human Rights First. I have been working with HRF either as a volunteer or consultant on detainee treatment issues for about four years now. When HRF asked me if I could go to Guantánamo as an observer, I jumped at the chance. Since my eyes, thoughts, and feelings will be the lens through which you will read about events of the next few days, a little information about my background may be in order.
I am a late (very late) 50’s age West Point graduate, former Army officer, Office of the Secretary of Defense executive, corporate officer for a major defense company, and national security consultant. I have served on several government advisory boards over the years, including one associated with military intelligence. I attended law school starting in the fall of 2000 with the idea that I would use my law degree to work on international human rights. It seemed to me that, with the end of the cold war, there was a real chance to extend the rule of law, especially human rights law, to the rest of the planet. That seemed like a worthwhile effort to be part of. Then came 9/11 and, much to my own surprise, I have been spending a lot of my time on human rights violations committed by the United States in the “war on terror.” This was not something I anticipated, and I cannot say that I am very happy about it. The fact is that in the international arena U.S. human rights advocates have a little problem with credibility right now.
The upshot of my background is that I have biases in two directions. I was a career Army officer (10 years active and 15 years reserve), and I have great respect and admiration for those who serve. My son is in Iraq with the VA National Guard and will be returning home about a week after I come back from Guantánamo. Accordingly, I tend to expect that the military people I observe will be carrying out their duties as ordered and in a reasonably professional way (particularly now, after so much attention has been focused on Guantánamo and with press and human rights observers present). I also, however, feel very strongly that the policies implemented by the U.S. government, and now being carried out by that same military I admire so much, are illegal, immoral and un-American. Some would disagree with that characterization, but the basic facts are not disputed. We have detained people for several years without trial or charge; subjected them to “harsh” interrogation; and are now trying a handful of those people under a set of rules, the Military Commissions Act (MCA) and implementing rules, that do not meet nationally and internationally recognized standards for fair trials.
Most readers of these postings will be familiar with the deficiencies in the MCA and rules, but some may not be. There are many deficiencies, but for me four stand out.
First, the right to a speedy trial was violated long ago for the people confined at Guantánamo. They have almost all been in custody for several years without charges or trial. One of them, now 21, has been here since he was 16.
Second, evidence obtained by coercion, and therefore inherently unreliable, may be admitted at the discretion of the judge. The degree of coercion detainees have been subjected to may be disputed, but the fact of coercion – even extreme coercion – is undeniable. The government likes to take credit for its “program” of “enhanced” interrogation. Much of the evidence against the detainees is believed to originate with other detainees who provided the information under interrogation at Guantánamo and elsewhere. It is hard to see how this “evidence” could be considered reliable.
Third, classified information will not be made available to defendants or, in many cases, even to their attorneys (including appointed military attorneys), contradicting the right to confront evidence and prepare a defense. The alternatives of redacted evidence, summaries, or stipulated facts based on classified information will be compiled largely by military commission prosecutors. I spoke yesterday with one of the military defense attorneys, a Navy Lt. Cmdr. He has a top secret clearance, but he is not allowed full discovery of classified information that could be relevant to his client’s defense.
Finally, there is the likelihood of bias or command influence on the military judges and the officers who will be members of the commissions. (There is also the policy problem of the perception of command influence in a military commission setting, but my intent here is to address legal rather than policy issues). The MCA and implementing rules provide that no participant’s efficiency report or promotion is to be influenced by a participant’s conduct in a military commission. But it is hard to imagine members being free of any concern that an acquittal would be looked upon unfavorably by the chain of command. Command influence does not have to be overt to be real.
There are many other problems. They include the broad admissibility of hearsay evidence, lack of access by defense lawyers to clients for adequate preparation, limited discovery, and charges for acts that were not crimes when they were committed, but the four cited more than suffice.
So here I am. While we were waiting for our flight at Andrews Air Force Base on Monday morning, I asked the defense attorney I spoke with a question: Do you think you are legitimizing an illegitimate process by participating in that process? His answer was the same one I had heard before from some of his colleagues. He worried about that prospect, but felt that the process would continue anyway and that his client would be better off with an able defense attorney than without one. Fair enough, but now I have to ask myself the same question: Is my being here with other human rights observers and the press helping to legitimize what is going on? Are we being used? The answer to some degree has to be yes. But I believe it is better to witness as much as possible and to raise the issues we need to raise based on our own observations—and perhaps even to influence events in a positive way—than it is to criticize from a distance. I may have more to say about this in a few days.
I have been asked by several people how I felt about going to Guantánamo to observe the commissions. I do have an expectation, and we will see if it is borne out. So far today it has been. My expectation is that events at Guantánamo will offer the illusion of some kind of “normal” that I will find to be almost surreal. As expected, the appearance of Guantánamo is largely that of any tropical American military base. There is a sailing club and a scuba club. The only difference is the addition of facilities for trials. The prison itself is concealed behind a ridge line. People are cordial for the most part and simply doing their jobs or socializing without any particular indication that something extraordinary is going on. But something extra-ordinary will be going on. By conducting the military commissions under the rules that have been established, America will be betraying her values. Under the guise of perfectly normal and acceptable behavior, guards, judges, and lawyers will go about their business in a very civilized and professional way as if it were the most normal thing in the world. I think I may find that troubling.
