Military Commissions on Trial in GuantánamoKaren Greenberg in The Nation, May 11, 2012
Article written by Professor Karen Greenberg.
While last Saturday’s opening of the 9/11 trials at Guantánamo received some news coverage, it’s worth pausing over just what transpired. The defense—joined by the accused themselves—challenged the legitimacy of nearly every aspect of the proceedings, making for dramatic courtroom theater and boldly emphasizing, again and again, the deep differences between these military commissions and civilian courts.
Partway through the day, the judge, Army Colonel James L. Pohl, asked wearily, “Why is this so hard?” The hearing was expected to be a two- to three-hour proceeding, but it had already passed that mark and nothing much had been accomplished. Instead, a parade of oddities had set the tone for a morning that included surprises, interruptions and challenges to the court itself. From the newly henna-dyed beard of Khalid Sheikh Mohammed to the prosthetic leg of Walid bin Attash, brought into the courtroom after the defendant himself was seated, to the wearing of the traditional Muslim abaya by a female defense attorney, this courtroom scene was neither orderly nor ordinary. Instead, it was a bitter standoff in which the defense attorneys challenged the court at every turn, causing the day’s session to last 13 hours.
The five defendants—Khalid Sheikh Mohammed, Walid Muhammad Salih bin Attash, Ramzi Binalshibh, Ali Abd al-Aziz Ali and Mustafa Ahmed al-Hawsawi—set the tone, refusing to look up at the judge or to wear headphones in order to hear the translated proceedings. But it was their defense attorneys who gave voice to the protest that was brewing. There were, all told, ten such attorneys present in the courtroom. Both civilian and military lawyers, they were there to represent the five co-defendants. They began by explaining that the commissions were off to an unfair start. They were not talking about legal issues at this point; they were talking about the physical comfort of the defendants. Khalid Sheikh Mohammed and Ali Abd al-Aziz Ali had not been allowed to wear the vest and turban provided by their attorneys; bin Attash had been brought to the courtroom, unexpectedly, in shackles. And as for the headsets, as KSM’s lawyer, David Nevin, explained, his client’s refusal to wear them “has to do with the torture that was imposed upon him.” Bin Attash’s attorney, Cheryl Bormann, clad in her abaya, made it clear that this wasn’t just a matter of past mistreatment: “What happened to these men this morning has affected their ability to focus on the proceedings at hand….”
The lawyers then turned to the crux of their frustration: their inability to properly represent their clients. At every point they could, they identified those factors that had “interfered with our ability to perform our duties competently.” It was a litany of obstacles that had frustrated the defense since the Obama administration’s decision just over a year ago to mount these trials by military commission rather than in federal civilian courts. A significant lack of resources, an absence of sufficient translators, plus the tight constraints on attorney-client communications had all “severely restricted” their ability to perform their duties, the lawyers explained.
Overall, the larger point they were trying to make, issue after issue, was that these were not Article III courts, the federal civilian courts in which these defendants were originally slated to be tried. Commander Walter Ruiz, the Navy lawyer representing al-Hawsawi, made the point crystal clear as he explained in a lengthy statement that one solution to the impasse created by the defendants’ unwillingness to elect counsel at the hearing would be to “proceed with what we do in federal courts.”
All of this comes on the heels of the public relations tour that the chief prosecutor, Mark Martins, has made over the past few months, enumerating in legal and academic settings the many “ways in which reformed military commissions are comparable to federal courts in their incorporation of all of the fundamental guarantees of a fair and just trial demanded by our values.”
If nothing else, the defense attorneys’ objections at Saturday’s proceedings challenged that claim. It’s hard to say just how much their tactics were coordinated prior to the hearing or how much they improvised, taking their cues from the defendants.
The most surprising part of Saturday’s hearing, to those unfamiliar with courts-martial proceedings, was the voir dire of Judge Pohl. Unlike federal court judges, military judges are not professional judges appointed for life terms, insulated from political pressures and experienced in the practice of constitutional law. As a result, their qualifications—their experience, their independence of mind and their competence—are questioned in the voir dire process.
For hours—in fact, the bulk of the day—the attorneys were invited to question him on his qualifications. The questions included ones that clearly expressed the attorneys’ dissatisfaction and frustration with the commissions: “What are your politics?” “What do you read?” But there were also questions about Pohl’s qualifications in terms of knowledge and experience: “Have you ever practiced law in a civilian court?” “Have you ever judged a case in an Article III court?” “Have you ever handled a case involving more than 20,000 pages of discovery?” Pohl’s answers revealed that he’s had limited experience with capital cases, almost no experience with complex litigation, little experience with ruling on constitutional issues and, in general, very little exposure to the federal court system that Martins has promised these commissions will approximate. All told, the message was clear: if the judge doesn’t have Article III court experience, if he is subservient to the Convening Authority and to the military for his job and his future, how can the proceedings possibly be compared to those in federal courts?
Contrary to Martins’s assertions at a press conference after the hearing, the voir dire didn’t demonstrate the strength of the military commissions system; in fact, it revealed its biggest flaw. Challenging a judge beyond his allowable comfort zone is unthinkable in federal court. Each and every attorney has a simple choice: be respectful or be removed—even punished. In the military commissions system, there is no such control. If the silence of the defendants or the vocal protests of their lawyers proclaimed the differences between the two systems, the voir dire illustrated it beyond a reasonable doubt. As if to cement the degree to which they were willing to push their protest, the attorneys insisted—despite the very late hour—that the judge read out all of the charges. “In twelve years of being a judge, this is the first time I’ve heard counsel wanting them to be read,” Pohl observed, unable to avoid a two-and-a-half-hour formal reading of the counts against the defendants.
From the moment Eric Holder announced that Khalid Sheikh Mohammed would be coming to New York for trial, a debate has raged over whether the 9/11 defendants and other “high-value detainees” at Guantánamo should receive civilian or military trials. But it’s surprising how deeply the debate has become embedded in the military commissions system itself. If Saturday is any indication, each and every step of these trials stands to be overwhelmed by the internal contradictions of this system, and the trials themselves will be a platform for vigorous challenges to the commissions’ validity.