Déjà vu with the Military Commissions

By Jamil Dakwar, Director of the ACLU's Human Rights Program. Jamil is in Guantánamo Bay this week to observe the Military Commissions hearings of three detainees.

While the nation’s eyes were focused on the testimony of General Petraeus and Ambassador Crocker before Congress this week, the Guantánamo military commissions quietly resumed on Wednesday with a hearing in the case of Saudi national Ahmed Mohammad al-Darbi, who has been charged with conspiracy and providing  material support to terrorism for allegedly training with Al Qaeda and plotting to attack ships in the Strait of Hormuz.

The new system of military commissions, which was created  from scratch and codified under the Military Commission Act of 2006, has failed  to incorporate basic constitutional and internationally recognized  standards of due process and fair trial protections. The failure of this  system was evident on the face of al-Darbi, who after being held for six years  at Guantánamo showed great distrust for a system of "justice" created to ensure convictions. This system not only admits hearsay evidence, but also admits statements obtained under coercion and abusive interrogation techniques, like the ones given the stamp of "legality"  by the infamous John Yoo torture memo, released last week to the ACLU as part of our FOIA  torture litigation.

Although almost four years have passed since the first military commission hearing was held at Guantánamo, the same issues resurface again and again, from problems with simultaneous translations, through ethical problems  with legal representation, to issues relating to secrecy and classified evidence. At the heart of the relatively short hearing today was  the military commission’s legitimacy and ability to produce fair trials, a hallmark of the American justice system. But despite the good intentions of the  military judge, Col. James Pohl, the system remains an unfair and illegitimate process that will continue to face legal and  political challenges.

Al-Darbi was brought into the court room unshackled, wearing  white prison garb (a sign of a compliant prisoner) and blue polo shoes. He was seated next to his detailed military defense lawyer, Lt. Col. Bryan Broyles. Al-Darbi was asked by the military judge if he accepted the legal representation of Lt. Col. Broyles, and he immediately stated that he was not interested in legal representation and did not accept the  legitimacy of the military commissions. He also asserted that he was  entitled to legal counsel from his own country, Saudi Arabia. (Under the rules of the Military Commissions Act, only lawyers who are U.S. citizens and have the  appropriate security clearance can act as civilian defense lawyers.) Al-Darbi said the military commission system had been more political than judicial, and that there was no international or U.S.  court that treats the detainees the way Guantánamo detainees have been treated.

This is not the first time a Guantánamo detainee has called  into question the legitimacy of the trials or decided to boycott the  commissions and seek self representation — Mohamad Jawad and Ali Hamza Ahmed Sulayman al-Bahlul have made similar statements. What gives al-Darbi’s statement today added weight is that questions about the credibility of the system have been raised by none other than the former Chief Military Prosecutor, Col. Morris Davis, who recently quit his job protesting against political interference from the Pentagon. Col. Davis is scheduled to testify next month  about his experiences in the case of Salim Hamdan.

Translators misinterpreted some of the statements made by al-Darbi. His military defense lawyer at a press conference said that the transcript would be corrected after listening to the recorded audio of the session. At times it was difficult to follow the exchange of words because the translators could not keep up and their voices competed with those of Col. Pohl and al-Darbi, making it difficult to hear either.

Despite the military judge’s repeated statements to al-Darbi  regarding the consequences of al-Darbi’s wish not be represented by Lt. Col.  Broyles and to boycott the hearings, al-Darbi decided to leave the court room, but not before he made the following statement in Arabic: "I was tortured and statements were taken from me under coercion." In fact, very little is known about al-Darbi’s treatment in U.S. custody (including his time at the notorious Bagram detention center) or the circumstances in which he was apprehended at an airport in Azerbaijan. It was reported that al-Darbi had been beaten and left hanging from handcuffs during interrogations at Bagram Air Base north of Kabul by an Army counterintelligence specialist. That specialist, Pfc. Damien Corsetti, was court-martialed in 2006 in Texas for abuse involving another detainee.

The thus-far-undisclosed discovery motion that was filed by al-Darbi’s defense team was discussed very briefly today. This discussion revealed that the prosecution has not disclosed all the information and evidence that relates to al-Darbi’s ordeal. In response to the defense request to the prosecution to make available all information that can help in al-Darbi's defense, the military judge asked the government to make an effort to disclose any relevant and material information. Col. Pohl also mentioned that the government is free to  respond to al-Darbi’s requests for information by declining to confirm or deny that the information exists.

The hearing ended with many questions left unanswered: How  will the trial proceed when the defendant is boycotting the hearings, and is accepting neither the legitimacy of the military commission nor the mandatory military defense representation? How will Lt. Col. Broyles deal with the ethical conflict of interest arising from his duty to provide the best legal defense when al-Darbi does not recognize the legitimacy of the court? How will the government react to the defense request for  information that might shed more light on al-Darbi’s treatment in U.S. custody, especially in Bagram? Will the conditions of detention of al-Darbi worsen as result of his boycott of his military  commission hearings?

The next hearing has been  scheduled on May 21st. It will take place with or without al-Darbi’s presence or participation.