June 5, 2007 – Is This the End of the Military Commissions?

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 25, 2006
Al Qahtani Joins Line of Defendants Refusing to Participate in Military Commissions
As the U.S. Supreme Court considers a challenge to the legality of the military commissions, military commission defendants continue their attack on the legality of the proceedings from within the system itself. Today, Jabran Said bin al Qahtani joined a long line of military commission defendants in refusing to attend the proceedings (apart from an initial appearance) because, according to him and his detailed military defense counsel, Lt. Col. Bryan Broyles, al Qahtani does not believe in the lawfulness of the military commissions.
The question of al Qahtani’s participation was at issue from the outset of the proceedings today when the commission convened with the notable absence of al Qahtani at the defense table. The Presiding Officer, Navy Cpt. Daniel E. O’Toole, requested that al Qahtani be asked if he wanted to come in. It was clear the moment al Qahtani walked in from his demeanor that he did not believe in the legitimacy of the proceedings. Al Qahtani is a slight short man with a full bushy head of hair and full beard. He looked incredibly young and wore what looked like his prison uniform—a tan long sleeved pullover shirt and tan pants. He had a devil may care attitude about him. The first thing al Qahtani said in the proceedings was “I don’t want this.” He then said: “I don’t want an attorney. I don’t want a court.”
Unlike a number of previous military commission defendants who questioned the legitimacy of the commissions, but also used the commission proceedings as a platform to opine on the U.S. and its detention and interrogation practices at Guantanamo, al Qahtani was a man of few words. For example, here was the exchange on al Qahtani’s legal representation (I am paraphrasing Cpt. O’Toole):
Cpt. O’Toole: Do you want to be represented by your military counsel? Al Qahtani: “No.” Cpt. O’Toole: Do you want another military lawyer? Al Qahtani: “No.” Cpt. O’Toole: Do you want a civilian lawyer? Al Qahtani: “No.”
Given al Qahtani’s refusal to accept legal representation, Lt. Col. Broyles found himself in the same ethical conflict that many of the other detailed military defense counsel have found themselves in. Cpt. O’Toole gave Lt. Col. Broyles an hour to get advice from his state bar in Kentucky and from the U.S. Army on standards of conduct for military lawyers. After the hour, we learned that Lt. Col. Broyles was told by the Kentucky state bar and the U.S. Army to present the best defense that he was capable of presenting and indeed that is what he spent the next few hours doing.
The question of rejecting legal representation has put detailed military defense counsel and the United States government in a difficult and complicated position. The military defense counsel are stuck between potentially violating their ethical duties as lawyers to their clients and violating the decision of a higher ranking officer who is also the Presiding Officer. That is a lose-lose choice. For the United States, participation by the defendant is as, if not more, important. It is critical for the United States’ image with its own populace and abroad that these commissions are legitimate and that they provide the accused all of the rights he is entitled to under international and U.S. domestic law. The absence of the defendant in the commission room while critical aspects of the hearing are ongoing, as was the case today when Lt. Col. Broyles conducted voir dire of the Presiding Officer without al Qahtani present, added to the stain of illegitimacy that already surrounds these commissions.
After conducting voir dire (a process where counsel questions the Presiding Officer to ascertain potential bias), Lt. Col. Broyles raised two major challenges to Cpt. O’Toole’s impartiality as the Presiding Officer. (The Prosecution had no questions on voir dire, nor did they have any challenges to Cpt. O’Toole’s impartiality.) Lt. Col. Broyles’s first challenge was that Cpt. O’Toole was partial to the prosecution because of Cpt O’Toole’s prior actions in this case. The second was that there was an implied partiality due to the fact that Cpt. O’Toole’s wife works at the Navy Criminal Investigative Services (NCIS) and a majority of the prosecution’s witnesses work at NCIS and that according to Lt. Col. Broyles, the Assistant to the Presiding Officer, Keith Hodges, continues parts of his job at DHS as a federal law enforcement training officer in direct conflict with his duties to the commissions.
The Presiding Officer, as you may have guessed, did not believe that he had been partial to the prosecution nor did he think there was any implied bias on his part and he found himself fit to be the Presiding Officer in this case. I know I have written about this before, but I still find it mind boggling that the person whose impartiality is being questioned is also the one who decides whether he is in fact biased. To me, it is representative of a larger problem with the commissions. You cannot have the person who makes the rules also be the person who dictates how they are applied. As we have seen in the cases of the Presiding Officers (where none has excused himself due to a finding of bias), the structure is such that the outcome is pre-determined.
Tomorrow, I will observe proceedings for Sufyian Barhoumi. We were told by his detailed military defense counsel, Navy Cpt. Wade Faulkner that Barhoumi had been moved to Camp 5 on March 30, 2006 (much like Omar Khadr). Should be interesting!


Published on June 5, 2007


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