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.