When Judges Take The Heat

November 9, 2007 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. Devon Chaffee – 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. Yesterday morning I observed what was expected to be the status and jurisdictional determination, and then the arraignment, in the trial of Omar Khadr at Guantanamo Bay, Cuba. Instead, the day’s proceedings accomplished neither of these steps but did amplify two of the most alarming concerns about the military commissions system: will the military judges — in this case Col. Peter E. Brownback — be impartial as the trials move forward, and will the defense have sufficient access to resources and evidence? No trial date was set and the question which participants (most certainly the prosecution) and observers had expected to be resolved before coming to Guantanamo — whether or not Mr. Khadr would be determined to be an “unlawful enemy combatant” subject to the jurisdiction of the military commissions — was set aside for the time being. When it comes to making decisions in the cases before them, judges should not have to take any heat. Independence of the decision maker is an essential component of any fair trial procedure; federal judges are appointed for life terms for precisely this reason — to insulate them from undue political influence. Unfortunately, Judge Brownback’s answers to questions from defense counsel Lieutenant Commander William Kuebler yesterday only fuels concerns about the ability of the military commission judges to act independently. Judge Brownback admitted to having said that he had “taken a lot of heat” for dismissing the Khadr case in June, heat which he suggested came from the Department of Defense — the agency that maintains him on active duty and employs him in his capacity as a military commission judge. Judge Brownback said that he had read newspaper articles in which a Department of Defense spokesperson called his decision an issue of mere semantics. He also stated he was aware that the former chief military commission prosecutor, Colonel Morris Davis, had been quoted in the media speaking out about pressure he had felt to get the military commissions going. That military commission judges and other commission officials are made to feel pressure from senior Defense Department officials about their actions and decisions that displease the Department is highly troubling. In further response to defense counsel questions, Judge Brownback took a creative approach to legal interpretation. He stated that in June 2006 the Supreme Court in Hamdan v. Rumsfeld did not hold that the previous military commissions system was illegal. This assertion shocked many courtroom observers who thought the message in the landmark Hamdan decision was clear: the Court struck down the original military commissions system because the system was illegal under U.S. statutory law and Common Article 3 of the Geneva Conventions. Judge Brownback’s unwillingness to recognize this holding is not entirely unexpected; for him to have said otherwise would be to admit that for two years commission judges had served as cogs in illegitimate, illegal proceedings. The judge’s troubling answers came during voir dire, a process by which counsel for both parties are allowed to ask the judge questions and, on the basis of his answers, challenge if appropriate the judge’s impartiality. While Judge Brownback denied the challenge to his impartiality, his answers to the defense counsel’s questions underscored long-standing concerns by observers and even many participants about the independence of the judges and other decision makers in the military commissions system — concerns that have been present since the commissions were first established. The Evidence Shell Game? Within an hour after the hearing ended, Lieutenant Commander Kuebler announced to the press that the defense recently had learned of evidence that could help prove that Mr. Khadr is not an unlawful enemy combatant — evidence which Lieutenant Commander Kuebler stated the U.S. government had long been aware. This announcement possibly related to defense complaints during the hearing that an FBI agent in Guantanamo had refused the defense’s request for a deposition, and it illustrated Judge Brownback’s recognition of the continuing problems faced by the defense due to lack of investigative assistance and access to intelligence analysts. Problems experienced by the defense in accessing evidence and resources appear to have contributed to the defense’s decision not to challenge yesterday the jurisdiction of the military commission. Such a challenge would have required the defense to overcome the evidence the prosecution was prepared to present evidence that Mr. Khadr was an unlawful enemy combatant. Lieutenant Commander Kuebler repeatedly explained, and Judge Brownback recognized, that the defense was not conceding Mr. Khadr’s status as an unlawful enemy combatant. Judge Brownback made clear that the defense could present a motion to challenge the court’s jurisdiction at a future point in the proceedings.