News from the gulag: Gitmo branch
There's lots happening in the United States' global detentions gulag. I haven't had a chance to blog about the Fay/Jones report yet. But there are some under-reported things that have been happening in the important Gitmo branch of the gulag that I want to note.
The "Military Commissions" (quasi-'trials') that will make a final disposition on the cases brought before them have finally--more than 30 months into the detention of most of the prisoners in Gitmo--begun this week.
Human Rights Watch's website has a good page that explains the difference between the "military commissions" and the other two types of quasi-judicial hearing that are now--slowly--happening on Gitmo.
So this week, the first detainees--oops, sorry, make that 'defendants'; or, on the other hand, maybe not?-- have had "their day in court" in the military commission hearing room. It has not so far been an easy week for the people running the commission.
Deborah Pearlstein of Human Rights First has been observing the proceedings, and HRF has been running her very informative, blog-type journal of what she's been seeing there. (She's been running one or two days behind. I sympathize with her. Still, it's well done and certainly worth reading.)
First up Tuesday was Yemeni national Salim Ahmed Hamdan...
Now, one of the interesting aspects of this "military commission" so far has been the activism--in defense of good, solid rule-of-law standards--of many or most of the military-appointed defense attorneys. Hamdan's is navy lawyer Lieut. Cmdr. Charles Swift. Like any good, attentive defense attorney, he immediately set about examining the credentials and impartiality of the Presiding Officer of the commission and all but one of its other four (or five?) members.
The Presiding Officer is Col. Peter E. Brownback III, a retired army judge who is the only one of the commission members who has any legal training. As I understand it, he runs the trial and the other commission members act as the "jury". But jury of the defendant's peers it is not--since all of them are serving (or retired?) US military officers.
In her journal for Tuesday, Pearlstein stresses that all the people involved in the commission:
- seem to be really good, decent people, people who are trying to do the right thing. But they are stuck in an impossibly bad and flawed system. They are trying to do the right thing when there is no possible right thing to do. The rules and system, as they've been created and as they are being implemented, cannot possibly give these defendants a fair trial.
- When the defense counsel asked the Presiding Officer, Col. Brownback, whether he could have an open mind about the legality of the proceedings -- about whether President Bush actually had the authority to establish these military commissions -- Col. Brownback said, 'Yes.' Lt. Cmdr. Swift pressed him: 'Did you think these commissions were lawful when you were appointed?'
The Presiding Officer paused for a long time and thought, visibly. He put his chin in his hand and you could see him thinking. His response was fascinating. He said (and I'm paraphrasing): It is one thing if you receive an order you know to be unlawful. (He was referring to the military duty not to follow orders you know to be unlawful.) And it's another thing, he said, not to be sure and to have questions and then to pursue those questions.
It was a very powerful and positive response.
Thursday, it was the turn of another Yemeni, Ali Hamza al-Bahlul, who shocked the court by asking for the right to defend himself.
As Deborah Pearlstein had written earlier, one of the problems with the whole proceeding from the rule-of-law point of view is that in many, many respects, the Presiding Officer has to make up the procedure as he goes along.
Evidently, Brownback hadn't given much thought beforehand to the prospect that one of the detainees might "pull a Slobo" on them and demand to defend himself. So the whole proceeding then had to be adjourned. (He shouldn't have been too surprised by the request, since the BBC correpondent on the spot, Daniel Lak, said that Bahloul had been refusing for some months to meet with his assigned military lawyer.)
The BBC report cited there also points out that:
- The proceedings were fraught with translation difficulties - at one point the defendant appeared to admit he was a member of al-Qaeda...
[Lak] says it was unclear whether Mr Bahlul intended to make such a dramatic statement or whether what appeared to be faulty translation of earlier questions from the judge had influenced him.
Nadia Charters of the Arabic-language al-Arabiya TV network told the AFP news agency she was shocked by the standard of translation.
- The day went slowly, mainly because of the translation, which is still a major problem.
At one point, the court switched translators and the new translator was not very good. Lt. Cmdr. Swift had a translator with him, and after the translator substitution, the defense?s translator told Lt. Cmdr. Swift that Mr. Hamdan wasn?t understanding the proceedings. And so the original translator returned.
It?s an exchange that sticks with me: the Defense Department was unable to provide a translator who spoke Arabic well enough so the defendant could understand the proceedings. It sticks with me because it so well represents the flaws of what is happening here ? the lack of preparation for it, the seat of the pants nature of it, and the basic unfairness of it.
So, another day, another bludgeoning of the principles of the rule of law in Guantanamo. What else is new, eh?