Is That What You’re Wearing to Trial?

Aaron Zisser is the Kroll Family Human Rights Fellow at Human Rights First and is in Guantánamo to monitor the proceedings in the terrorism case against Salim Hamdan.

Guantánamo Bay, July 21, 2008: Awkwardness and threats of further delay seized the start of today’s proceedings. Slated as the last day before opening statements, the morning began with the entry of Salim Hamdan’s not-guilty plea. Mishaps continued through the end of today’s hearings and into the evening. The numerous problems, both serious and ostensibly trivial – including awkward moments, last-minute rulings on significant evidentiary issues, and eleventh-hour document disclosures by the government – are the latest examples of the disarray that has plagued the military commissions since 2004. These hurdles highlight the danger of departing from reliable systems and procedures already in place to handle complex terrorism cases.

The day was mostly taken up with jury selection – in this case, selection of the “commission members” who will judge Mr. Hamdan’s guilt or innocence on charges ranging from driving Osama bin Laden to transporting missiles to the battlefield. The numerous personal and professional connections between the commission members (who are all military officers) and people who were in the Pentagon when it was attacked on September 11 – and the impaneling of some of these members – demonstrate the need for more mainstream mechanisms for prosecuting alleged terrorists.

Wardrobe Malfunctions and Government Fumbles

Today’s numerous mishaps show how even the simplest issues can cause problems in a process that is made up on the fly.

Perhaps especially symbolic was the fact that Mr. Hamdan was forced to wear his prison garb, instead of his formal attire, in his first appearance before the military commission members. While this may seem a trivial matter, in ordinary courts, the appearance of a defendant in his prison garb is considered to prejudice the defendant in the minds of the jury members. For it to happen the very first day is particularly disconcerting.

The judge was compelled to explain the situation to the then-potential commission members, noting that Mr. Hamdan’s appearance was not a form of protest and referring to his clothes as his “casual” attire. Apparently, someone in the detention facility had thrown Mr. Hamdan’s formal courtroom clothes in the laundry. The judge might have recessed to wait for the clothes, but the defense seemed to think it would take some time for the clothes to arrive. The clothes were retrieved a couple hours later.

Later in the morning, the prosecution fumbled around to find a document that it was supposed to read in open court. Shortly after the prosecution began reading the incorrect document, which was a detailed charge sheet that would have taken a lot of time, the judge was compelled to ask the potential commission members if they had a copy of the correct document on hand. One of the potential members provided his copy, and the prosecution read from that.

Perhaps the most embarrassing moment for the prosecution was when it was asked to swear in the potential commission members. The military prosecutor stepped up to the podium and apparently improvised a statement. The judge waited until “I do” and then said that he may have “caught trial counsel by surprise.” He then read the correct swearing-in statement.

The proceedings closed when the judge realized he could not complete the jury instructions because he could not be sure whether the military commission mirrored the court-martial system’s rules allowing commission members (jurors) to ask questions of the witnesses.

A Jury of One’s Peers?

Jury selection was another good example of the deceptive nature of the proceedings. Jury selection proceeded in a manner that resembles jury selection in any case, with discussion about bias and the like. But important and troubling differences quickly emerged.

The jurors are all officers from the various branches of the military, and they all appeared in uniform. This might make sense in a court martial, since misconduct by military persons occurs in a context and environment familiar to those who have experienced it. This seems to parallel the civilian justice system, which requires a jury of one’s peers. But this is simply not the case here.

Some other problems with this system became particularly acute as the attorneys questioned individual jurors. Of the thirteen potential members in the pool – yes, only thirteen were available – at least five knew people in the Pentagon when it was attacked on September 11. Others knew the officer serving as Commanding Officer of the USS Cole when it was attacked in 2000.

It is no surprise that so many military officers knew people in the Pentagon on September 11, or that some knew the Commanding Officer on the USS Cole. But this obvious fact highlights the problem of having military officers judge a person accused of conspiring with the Al-Qaeda masterminds of September 11.

One of those five was in the Pentagon on September 11, near the site of the impact, and had been classmates with the Commanding Officer of the USS Cole. While the judge excused this panel member and another member who had friends who participated in removing bodies from the Pentagon following the attack, he nonetheless denied a defense motion to remove a third panel member who knew the USS Cole Commanding Officer from college and knew a person who was killed at the Pentagon. The defense had to use a peremptory challenge to remove that person from the jury box. The judge reasoned that the member had not known the victim well, and it had been a long time since they had had significant contact. In civilian courts, it is the norm to excuse potential jurors who know victims or intended victims of the crimes.

After excusing other members, including one who happened to know an FBI witness in the case, the judge impaneled six members plus one alternate. A minimum of five members is required under the Military Commissions Act, and only two-thirds are required to vote guilty in order to convict Mr. Hamdan.

Late-Night Reading: Untimely Disclosures and HVDs

Several outstanding issues remain unaddressed the evening prior to opening statements. Here are two:

• Coercion and self-incrimination: The judge issued several rulings today suppressing some of Mr. Hamdan’s prior statements, including statements allegedly made during his detention in Bagram, Afghanistan. The judge did not issue some of his rulings until this evening, however, and it is possible that the trial will be further delayed should the government wish to appeal. The defense called these rulings “highly significant,” both for Mr. Hamdan’s case and as precedent for similar cases.
• Conditions of confinement: Yesterday, the government turned over more than 550 pages of documents that were requested months ago. Fifty or so pages relate to Operation Sandman, a sleep deprivation program, and were not released until late last night. The remaining documents pertain to other aspects of Mr. Hamdan’s confinement.

The defense has argued that these documents could shed light on conditions and treatment during Mr. Hamdan’s interrogations and could be used to argue against the admissibility of certain statements made under coercion. The last-minute nature of the disclosure could prompt defense counsel to ask for a delay so they can better prepare their opening statements. After the proceedings today, the defense called this delay “Governmental misconduct” with a “big-G” and an indication of how the Administration has handled this process to ensure “plausible deniability” regarding its own role in withholding evidence.

The prosecution has used national security concerns as a crutch in fighting defense motions for discovery. Ordinary federal courts have vast experience dealing with terrorism prosecutions, including over one hundred such cases in the last fifteen years, and are equipped to address both national security concerns and the fundamental rights of the accused. Using such courts would assure more predictable and timely processes and would provide more fairness and legitimacy.