“Torture Has Tainted Everything:” GTMO Defense Attorneys Discuss the Military Commissions

By Elizabeth Topolosky

For most Americans, the military commissions in Guantanamo Bay, Cuba are out-of-sight, out-of-mind. But the troubled system grinds on.

On November 14th, I traveled with ten other representatives from non-governmental organizations to observe pretrial hearings in the case of Abd al Hadi al-Iraqi (Hadi). The hearings lasted just 84 minutes and featured the voir dire (vetting) of Judge (Colonel) Peter Rubin and a truncated discussion of two legal motions from the defense: one to withdraw (with the possibility of re-filing later) allegations that the prosecution had violated their clients’ rights by excluding him from several meetings, and another requesting that the judge order the government to provide Hadi a computer capable only of basic word processing functions to facilitate his review of case documents.

At one point, Hadi—an Afghan accused of conspiracy to commit law of war offenses in connection with a series of attacks in Pakistan and Afghanistan around 2003—asked to speak to the judge. He complained that he had only briefly met with his newly assigned counsel, Captain Jeff Fischer, and did not know him well enough to approve him. As such, he formally reserved the right to fire Fischer at a later date.

Judge Rubin approved the defense’s first request and punted the second before cancelling the next day’s hearings.

While the hearing was cut short (a common occurrence at the military commissions) another tradition of the NGO observers’ trips—meetings with Chief Defense Counsel Brigadier General John Baker and the defense team—held strong.

Hadi’s defense team was blunt in its criticism of the commission. “The court in its current form is unconstitutional,” declared General Baker. “I don’t think the process is very fair.”

As we listened, the defense attorneys listed their problems with the commission: extremely relaxed hearsay rules, circular reporting and analyst bias, the classification of important evidence, and an overall lack of transparency.

The defense team also took issue with the Periodic Review Board (PRB) hearings, which take place before a panel of top government security officials to determine whether an uncharged detainee should be transferred, charged, or continue to be held without charge.

According to the defense, during these pre-indictment hearings, detainees are implicitly encouraged to agree with the government’s view of their pre-capture activities so that they have a higher chance of being cleared for transfer out of Gitmo. Acknowledging the government’s allegations is sometimes viewed as cooperation, one of the factors the Board considers in its decision. The government, however, is not bound to honor any promises it makes during these proceedings, and any statements the detainee makes in the hearing can later be used against him should it choose to prosecute.

But the largest problem with the military commissions, said the defense team, was torture. “Torture has tainted everything,” General Baker declared. “It has made the litigation about what the government has done, not what the defendants have done. Some of our clients were tortured by people wearing the same uniforms we are.”
In the view of the defense, Human Rights First, and a number of military leaders and professional interrogators, the best solution is to close the military commissions and transfer the cases to U.S. federal courts.

“I don’t know that because of the torture that this process can be fixed,” stated General Baker. The commissions, attorney Robert Kincaid warned, “blur the lines between criminal and military law.” That is dangerous to human rights, he cautioned, because it is easy to lose legal protections in a mixed system.

While it is easy to ignore the proceedings taking place in Guantanamo Bay, it is important to notice what is happening. The stakes are high for all of us.


Published on November 29, 2016


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