Khadr Boycotts Hearings, Challenges Conditions of Confinement

April 5, 2006 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. The military commission sat to hear the case against Omar Ahmed Khadr today. The session lasted for over 12 hours. The day was incredibly eventful and Khadr and his team of defense lawyers raised a number of key concerns regarding the legality of the commissions. Unfortunately, despite the long session, there was little resolution on most of the critical issues raised. The proceedings began with a bang when Khadr, now a 19 year old adolescent, announced his intention to boycott the proceedings because of the conditions of his confinement. Khadr made a short statement to the commission stating his intent to boycott until he was treated humanely and fairly. He also said that he believed he was being punished because he was participating in the military commissions process. You can read his statement here. According to Khadr’s recently detailed military counsel, Lt. Col. Colby Vokey, Khadr was transferred to solitary confinement on March 30, 2006. A government official has confirmed that Khadr is being held separately from the other prisoners. Under the circumstances, it is clearly the responsibility of the Presiding Officer to look into the conditions of Khadr’s confinement and determine whether Khadr was indeed transferred because of his participation in the commissions proceedings. Solitary confinement for commission defendants – a harsh and debilitating form of confinement reserved for only the most serious offenders in the United States, and even then strictly limited – is an issue that has arisen before. It is critical that quick action be taken to ensure that it is not happening again. Unfortunately, the issue seems unlikely to be resolved immediately. After Khadr made his intentions clear, Col. Chester asked the defense counsel if they were ready to brief him on the issue. Defense counsel were not ready, and pointed to the fact that they had only recently learned of Khadr’s transfer from Muneer Ahmad, Khadr’s civilian lawyer. Col. Chester informed defense counsel that if they wanted him to do something, they should prepare a motion; he would then give the prosecution time to respond and then consider the matter. There is a possibility that Col. Chester may consider the matter on Friday, but there was little indication today that he was pressing to move that quickly. Col. Chester did want to move ahead with the other issues in the case, including the voir dire – the questioning of the Presiding Officer on his experiences and qualifications to ascertain potential bias. Of course, this raised the same conundrum faced by military counsel in the case of Ali Hamza Ahmed Sulayman al Bahlul. The Khadr defense team had clear instructions from their client to not move forward with the case until the matter of his transfer was resolved, but the defense was told by Col. Chester to move forward. Col. Chester went even further and informed defense counsel that if they did not move forward then he would consider Khadr to have waived his rights with respect to the issues before the commissions today. Defense counsel were basically forced to choose between going against their client’s wishes and taking action that would seriously undermine their client’s interest in the commissions proceedings. Far better than forcing this Catch-22 would have been for Col. Chester to direct the prosecution to inquire into the matter of Khadr’s transfer and be prepared to inform the commissions regarding that transfer by the end of the day. Faced with two bad choices, Khadr’s lawyers chose to move forward on voir dire and on arguing the two motions they had put before the proceedings–one challenging a discovery order and the other asking for an abatement of the proceedings until the full commission is sitting to hear the case. Defense counsel Lt. Col. Vokey conducted the voir dire of Col. Chester, informing the commission that he was doing so “under protest” since his client did not want him to move forward. The voir dire raised a number of longstanding problems with the commissions system, including what laws are applicable in the commission proceeding. At one point Col. Chester said “I will follow the law as I determine what the law is.” But that kind of ad hoc announcement is the opposite of how the law is meant to work – providing defined rules in advance and giving all involved fair notice of the standards they will face. Lt. Col. Vokey ultimately raised two specific challenges against Col. Chester remaining the Presiding Officer in this case. The first challenge was that because Col. Chester acknowledged having pursued outside research on the case, he would necessarily base his judgments on facts that were not presented and subject to cross examination in the commission hearings. Lt. Col. Vokey argued that this was in conflict with the Cannon 3 of the ABA Model Code of Judicial Conduct on appropriate judicial behavior. The second challenge arose from Col. Chester having an outstanding job application with the Department of Justice for a position as an Immigration Judge. Lt. Col. Vokey argued that the Attorney General of the United States (Alberto Gonzales) appoints immigration judges and that Gonzales has a personal and professional interest in the outcome of military commissions. Lt. Col. Vokey argued that seeking employment from people who have an interest in these cases raises questions regarding Col. Chester’s impartiality. Col. Chester unsurprisingly rejected these challenges to his impartiality, and promised detailed findings at a later date. He also informed the defense counsel that he would consider their request for a certification to appeal Col. Chester’s decision on the challenges and let them know. Col. Chester then turned to the two motions presented by the defense. The first was a motion to abate the proceedings until all of the members of the commission were present. This was a similar motion to that made in the al Bahlul case; a recap of those arguments are available here. The second motion was regarding Khadr’s right to have notice of and access the evidence against him. Defense counsel Ahmad argued that the Presiding Officer Memorandum 7-1 on discovery orders (controlling the flow of information in the case) violated due process under the Fifth Amendment of the U.S. Constitution. The most interesting aspect of the argument was around the question of whether the Fifth Amendment’s due process requirement applied to Khadr. Ahmad convincingly argued that federal Judge Joyce Hens Green, in separate court proceedings challenging the Guantanamo detentions, had ruled that Khadr indeed had substantive rights under the Fifth Amendment. These rights, Ahmad contended, were fully protected under the rules of discovery outlined in the manual for courts-martial, and these rules should apply. The government rejected the idea that the U.S. Constitution applies to Khadr because he had violated the laws of war; the prosecution also argued that the rules of courts-martial do not apply because this is a military commission. What laws the prosecution did think were applicable were not identified – apart from those rules created by the Executive himself and those developed by the Presiding Officers who are appointed by members of the executive branch. Col. Chester said he would take the matter under advisement. As Col. Chester closed the session today, I couldn’t help thinking that no matter how hard these proceedings try to create a veneer of normalcy, nothing about Guantanamo Bay is normal. As Lt. Col. Vokey shouted in frustration in the proceedings today: “Every time we come down here there is an incredible burden just to do my job….There are no rules here.” This sentiment has been echoed by a number of military and civilian defense lawyers outside of the courtroom. If these commissions are going to be an effective process for trying those detained at Guantanamo, it is critical that they abide by basic protections provided for under U.S. and international law. Tomorrow is the much anticipated hearing for Binyam Ahmed Muhammad. I will keep you posted.

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