Guantanamo Bay, Cuba, 11/18/09 – Legal proceedings, such as they are, rumbled to life again today at Guantanamo Bay. Pre-trial issues in the case of Mohammed Kamin, an Afghan man who was captured by the U.S. in Afghanistan in 2003, were heard in a military commission courtroom on a small hill a few miles away from where the more than 200 detainees left at Guantanamo are housed.
The proceedings were a non-event before they even took place, unattended by even a single journalist and unremarked upon by political elites, many of whom spent the week arguing about whether military commissions or federal courts were the appropriate venue for trying alleged terrorists.
Soon after the proceedings were gaveled to order, President Obama, speaking to FOX News in Beijing, said that the detention facility at Guantanamo would not close in January.
"I knew this was going to be hard," the President said referring to an executive order he signed on January 22 ordering the detention facility to be shut within a year but "technical issues" as well as "politics" got in the way of closing the facility. He stated that he anticipates the facility will be closed at some point next year.
Many of the President’s political opponents have taken to the airwaves this week to laud the use of military commissions as the only sure-fire way to provide justice for those who are accused of terrorism.
Meanwhile back at the commission proceedings, it was business as usual – meaning that the judge spent more than two hours covering legal issues that have virtually no precedent in military commissions. But despite the hard work, it was hard to say that justice in Kamin’s case was any closer at hand.
Commission proceedings, since their inception, have been hampered by confusion about the rules, a lack of transparency, and other procedural hurdles. Today was no exception.
Trying a Man No One Has Heard Of
Mohammed Kamin is, in the words of his defense attorney, "someone who almost no one in the western world has ever heard of."
When Attorney General Eric Holder announced on Friday that the five men charged with conspiring to plan the 9/11 attacks would be moved to federal court, there was no mention of what would be done with Kamin.
It was unclear how – if at all – a Department of Justice-led review of detainees held at Guantanamo might impact the case against Kamin. No one had bothered to tell his lawyer.
"The fact that we are standing here in this courtroom today suggests that we are going to proceed to military commissions," Navy Lt. Cmdr. Richard Federico, the military attorney charged with defending the Afghan detainee, said uncertainly at the beginning of the proceedings today. "That would be my assumption too," chipped in Judge Thomas Cumbie.
There is a making-it-up-as-we-go feel to these proceedings which is inevitable for a system of trials for which the Congress, courts and executive keep changing the rules. For example, there was discussion today of a new pre-trial hearing date in December in the Kamin case.
But officials said that the new rules for the military commission proceedings – which the Department of Defense needs to alter to conform with reforms passed by Congress on October 29 – have yet to be released by the Department of Defense. Officials with the Office of Military Commissions at Guantanamo acknowledged today that they have not even seen a draft set of the new rules.
Any rulings issued in connection with today’s hearing or in the court’s next hearing on this case (scheduled "on or around" December 16) may have to be re-litigated when the new rules are released, further delaying a date when the Kamin case might reach a verdict. Kamin has been held for more than six years without any meaningful judicial review.
Other problems unfolded as the hearing moved into its second hour.
Basic discovery information has yet to be passed on to the defense. For example, the defense told the court today that they still have yet to receive many of the accused’s statements.
The prosecution, more than 1.5 years into formal legal proceedings against Kamin, recently provided an interrogation log which shows that he has been interrogated 17 times, yet summaries and/or transcripts of what was said at those meetings have only been provided to the defense for four sessions. "This is elemental stuff," Federico told the court.
Two Guys Not on Google
Captain Clay West, who acts as co-defense counsel, raised yet another thorny issue: two Afghan men who initially interrogated Kamin can not be found by the U.S. government for questioning. West suggested that these men, who were on the U.S. payroll, may have "softened up" Kamin and they ought to be questioned by investigators to determine what role any abuse may have played in subsequent statements.
Government prosecutors shot back that they were doing everything they could to find the two men. "Its not like we can put their names in Google," said Air Force Captain Jeremy McKissack, a prosecutor. Judge Cumbie suggested that so much time had passed since Kamin was captured, "they might be dead."
"The government has worked five years to charge this case," West said. "The government should suffer for not trying this case sooner, not Mr. Kamin."
There were other questions too. After all, as Federico explained, it was his "ethical responsibility" to pursue every avenue he can to defend his client.
Is material support for terrorism, the charge under which Kamin is to be tried, a charge that will stand up under appeal? Federico told the judge that, in his opinion, it probably would not – even the Attorney General’s office expressed similar doubts before the latest Military Commissions Act became law – and argued that he ought to be able to make his case to the "convening authority" who has the power to choose who to prosecute.
Providing "support" for terrorism, as opposed to actually committing terrorism, has not traditionally been considered a violation of the laws of war, Federico argued, and it would be a waste of resources to try a case that is likely to be overturned. The judge promised to consider the motion.
It didn’t stop there.
What should be done about a system that was designed – according to rule – to try "enemy combatants" when a new administration now calls detainees like Kamin "unprivileged belligerents?" Federico says this is not accounted for in the rules. Are changes necessary? Federico says that this alone is enough to dismiss the case.
And on and on. All of these issues have to be litigated. Memos have to be written. Motions filed. Hearings convened.
Almost every issue breaks new ground. Kamin elected not to attend this hearing. He has skipped every pretrial motion. The judge warned that there may come a time when it is necessary to "forcibly extract" him from his cell and make him attend hearings. But it is not clear when that time will come. Or who will decide. More memos. More unchartered territory.
This is the state of play with a military commission system that was put in place in 2006 and overhauled just a few weeks ago. New rules are being put in place while detainees are being tried. Changes are inevitable and as the clock continues to run, it becomes harder and harder to convene a trial that is seen to be timely and fair.
This is what it takes to build a legal record and develop a complex legal system. It’s fascinating for lawyers to watch. But it is not the way a sophisticated country should be managing justice.
There is another option.
Thankfully the federal judicial courts are already prepared to handle the most complex terrorism cases. Since 9/11 the federal system has reached a verdict on 195 cases, finding more than 90 percent of alleged terrorists guilty.
For those of us who have seen the Guantanamo system of military commissions operate, it is hard to believe that any politician would argue that what we have here is what we need. Especially when a system of justice, with a proven track record, stands by, ready to do the job.



20 Comments




David,
Thanks for bringing us a stark reminder that there still are many at Guantanamo whose stories have not been told.
The U.S. is not a fit place to try the ’9/11′ defendants or any ‘terrorist’ suspects. We’re too uncivilized, having neither an independent non-politicized judiciary nor a sufficiently non-prejudiced, untainted jury pool.
If the U.S. is unfit lets just pay one of those countries in the eastern block to take them and put them in one of those secret prisons and forget about them, or make them disappear.
“but “technical issues” as well as “politics” got in the way of closing the facility. He stated that he anticipates the facility will be closed at some point next year.”
From my limited understanding, prosecution was not possible because of mismanagement via Bush Crew. Now they complain at resolution of the mess created by the GOP – Grand old pity party.
Heard that the WH said that Geithner brought the country back from the economic brink. Double dip recession looms on the horizon. The Vacillator in Chief has spoken
“unprivileged belligerents?”
“They’re depraved on account they’re deprived.”
/Officer Krumpke
military commissions are not really working out are they?
I hear there’s a newly opened McD’s at Gitmo Bay….
finding an un-tainted jury pool in NYC is certainly going to be problematic.
And whose rules of evidence apply? Federal Rules of Trial Procedure, or some sort of bastardized version of the military commission rules?
If it’s regular trial rules, they’re going to have one hell of a time getting any evidence of “admissions” by the defendants in. Also, any evidence which was later discovered in an sense as a result of these “admissions” *should* be tossed.
This stuff is coming in pre-tainted; but the guilty verdicts have already been decreed. These are going to be trials which have defense lawyers across the entire country pulling their hair out.
This never ending: the Bush administration jumped into a litany of vast open ended commitments that ultimately did nothing to address the attacks of 9/11 and now this administration is baffled and obstructed at every turn in efforts to end this. Put these guys in a Super Max, ship to Alcatraz and had them over to those drug and adrenlin crazed privte contractors and let them all drive one another mad. I don’t care. Just make it go away.
Where could an untainted jury pool by found on the planet? I think the event was covered and shared everywhere, wasn’t it?
Was on a criminal jury recently, and during the voir dire any number of people were dismissed for any number of reasons (a substantial group thought the defense attorney had to prove his client innocent…gah).
There are some very stupid people out there, but there are also those who endeavor to be fair. My jury experience actually renewed my faith in my fellow human beings, to some extent ;). With a large enough jury pool, they should be able to find sufficiently thoughtful jurors.
Very poignant. It would be nice to have a U.S. president who cared, for a change.
Jane has a new post up
I went to the White House site to try to find Obama’s remarks to Major Garrett of FoxNews. Guess what, they’re not there. I have criticized the White House website in the past but it continues to not even come up to “Bush” league standards. I checked speeches and remarks, statements and releases, and press briefings. I had trouble accessing video but it doesn’t look like it is there either. All this stuff is supposed to be transcribed anyway and the interview was a couple of days ago.
This is a wonderful but very depressing post. None of this stuff is rocket science. Nearly a year into the Obama Presidency and Gates and Holder couldn’t detail half a dozen lawyers and JAGs to coordinate action on the military commissions? Don’t get me wrong. I think the commissions are kangaroo courts and I have opposed them since their institution. But it sure looks like no one is at the wheel and if this is the quality of leadership that has been happening, is anyone surprised that Guantanamo won’t be closing on time?
This is what takes place when a nation lets the administration in power force two wars by lying and trumping up evidence, then going Scott free after the new election. The nation took it in the shorts by believing Bush and Cheney and allowing them to start two wars for their own personal amusement with only lies and bluster. All of us drank the cool aid and now we are all experiencing the outcome. I still believe that Bush, Cheney and Rumsfeld should be put on trial for treason, war crimes and crimes against humanity!
While it is true that Obama received a bucket of worms when he took office I do not believe that he or his administration have been honest with the American People. When the real truth comes out about 9/11 and the Iraq and Afghanistan wars there will be hell to pay! We the people ended the Vietnam War and we the people are going to have to stop the Afghanistan war or once again suffer the consequences of many thousands more dead and wounded and a totally destroyed economy! I, for one, believe there will never be true justice for those at Gitmo because of the tangled mess that the Bush administration caused and left us. Everything he did shredded our Constitution and the Rule of law. I believe that we will still be trying to figure out this mess 100 years from now!!
As I am doing some research on this for an entry to my scandals list, I should point out that the conference report for the Defense Authoritization Act which I assume contains these changes to the military commissions system passed the House on OCt. 8; the Senate on Oct. 22; and were signed into law on Oct. 28.
You are correct Hugh.
Here’s the final defense authorization bill, containing the 2009 Military Commissions Act [it starts on PDF Page 385 of 655].
One important correction to this very valuable post:
So tweeted the Miami Herald’s Carol Rosenberg, who was the sole representative of the American “free press” who took the trouble to travel to Guantanamo this time.
She also just broke this news about ten minutes ago:
http://twitter.com/carolrosenberg
Why, with all their resources and all their classified intelligence, and years to prepare, has our Executive Branch of government, our military, DOJ & CIA, failed to prove – even by a low “preponderance of the evidence” (more likely than not) standard – to neutral federal magistrates, that so-called “enemy combatants” – or “unlawful enemy combatants” or “alien unprivileged belligerents” – detained for years in our Guantanamo military prison are legally detained, in 31 of 39 habeas cases finally heard on their merits since June, 2008?
The reasons go something like this:
http://icj.org/IMG/EJP-report.pdf
That’s from Chapter 3 of a report by an “Eminent Jurists Panel” composed of Arthur CHASKALSON (South Africa), Georges ABI-SAAB (Egypt), Robert K. GOLDMAN (United States), Hina JILANI (Pakistan), Vitit MUNTARBHORN (Thailand), Mary ROBINSON (Ireland), Stefan TRECHSEL (Switzerland), and E. Raúl ZAFFARONI (Argentina), whose mandate was:
Their (February, 2009) report’s executive summary is here, the full report again is here, and more detail is here.