Not with a bang, but with a whimper: Another day in the life of Guantanamo Military Commissions

By Gabor Rona

International Legal DirectorHuman Rights First
Cross-posted from Huffington Post

THE END IS NEAR! Or maybe it isn’t.

In the second and final Guantanamo military commission proceeding scheduled this week, the government requested, and was granted, yet another delay, this time 60 days. This makes a grand total of ten months’ delay at the government’s request since charges of material support for terrorism and conspiracy were sworn against Ahmed Mohammed Ahmed Haza al Darbi about twenty months ago. The purpose of the delay, as in the case of the alleged 9/11 co-conspirators’ case earlier this week, was for the Obama administration to decide whether it wished to proceed with the military commission prosecution of Mr. al Darbi, or not.

Judge James L. Pohl did not let the government off lightly. Although he granted the request, he also did not fail to take note that the government was seeking its third delay in connection with events that occurred nine years ago concerning a man in custody for the last seven of those nine years. He noted that all this takes place in a context in which the administration, itself, had stressed the interest of all concerned in a “prompt disposition.” And he finally even apologized for using the word “efficient,” as in ‘what would be the most efficient course at this point.’

Defense counsel Ramzi Kassem had argued for dismissal rather than delay, noting that with the revisions to the Military Commissions Act (MCA) being considered by Congress, the case would pretty much have to start from scratch once a new law comes into effect. And that’s assuming the administration decides to keep Mr. al Darbi’s case in a military commission. Unlikely, suggested Kassem, in light of the fact that almost all the evidence against his client consists of his own statements made under torture and lesser forms of duress, which the present law might allow in evidence, but which will likely be inadmissible under the revised MCA.

A further discussion between the judge and defense counsel involved speculation about how much would actually have to be done over under “military practice” if charges had to be refilled. “I’m not as familiar with military practice as you are,” Kassem said to Judge Pohl. “This is not really military practice,” replied the judge, somewhat wistfully, as if to purposely belabor the obvious point that the ad hoc military commission process involves just so much blind leading the blind and should not be confused with the more well-established process of courts martial under the Uniform Code of Military Justice.

Prosecutor Frank Rangoussis replied that the case should not be dismissed since even under a new MCA, the charges would remain the same. Kassem responded with the spontaneous shock that good trial lawyers cultivate. ‘How can the prosecution assert that charges will not change? The very charge Mr. al Darbi faces, material support for terrorism, is one that the highest legal authorities in the Department of Defense claim should be removed from the MCA, since it is not really a “war crime!” ‘

The judge sidestepped the food fight and opted for the less drastic solution: continuance for 60 days rather than dismissal. But Mr. Kassem has a point. And even if material support remains part of the MCA menu of crimes, it will be interesting to see whether the government, which has denied its validity, then defends it.

There are other moving parts to this saga. In addition to the possible revamping of the MCA, and the decision that the administration will be making about whether to continue this case in the military commissions, there is the habeas corpus petition that Mr. al Darbi has pending and in which, the government’s determination that he is an “enemy combatant” might be reversed. So far, the government has lost in about ¾ of the habeas petitions filed by detainees. And then, there is the broad judicial challenge to the military commission process taking place in the D.C. Circuit Court, which has ordered the parties to report to it by the end of this week on the events that transpired in Mr. al Darbi’s hearing yesterday in Guantanamo. Any one of these processes has the potential to send Mr. al Darbi’s case hurtling off into some unknown direction.

This is the point at which my grandmother, may she rest in peace, would say “Enough already!” And indeed, one gets the sense that things are unraveling to the point of no return. That does not mean, of course, that they won’t continue to do so for some time. As Mr. Kassam noted in the post-hearing press conference, a chicken with its head cut off will still continue to run around for a while.

I wish my grandmother were in charge here.

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Published on September 24, 2009

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