The Detainee Dance at Gitmo

David Danzig is at Guantanamo Bay this week observing military commissions.

Guantánamo Bay, July 16, 2009: At 1:40 PM the court room was prepared for motions to be heard against five men accused of plotting the 9/11 attacks, except that one of the detainees was talking with his attorney in such a loud tone that it was difficult for the proceedings to begin.

Mustafa al Hawsawi, one of the five so-called “9/11” defendants, claimed that he had been misled about his role in the day’s proceedings and said that he wished to leave before motions even began.

Al Hawsawi’s abrupt departure followed more than three hours of legal wrangling. At issue were questions regarding the detainees themselves. Did they have to attend their own hearings? If they refused, should the staff judge advocate use force to compel them to be in the court room?

Like so many things at Guantánamo related to military commissions, this was unchartered territory where the officials in charge seemed, at times, to be unsure of the rules.

There is no legal precedent to fall back on. This is the first time that the military commissions were dealing with these issues in a conspiracy case involving multiple defendants.

The morning was filled with motions as the defense and the prosecution jockeyed for advantage.

In the strange world of military commissions, where nothing is what an outside observer might expect it to be, the prosecution argued that the court should do what it could to bring all of the accused to the courtroom. Give them a chance to speak for five minutes each at some point during the proceedings, a lead prosecutor in the case pleaded with the court, but don’t allow them to participate in the court’s active business.

No, said David Nevin, a legal advisor to Khalid Sheikh Mohammed. Mohammed, the alleged “mastermind” of the 9/11 plot, is representing himself in these proceedings but chose not to attend the motions that were argued today.

It was Nevin’s view that Mohammed should be allowed to participate in the motions themselves since he was being tried for “conspiracy” and therefore the disposition of the other defendants in the case – were they competent to stand trial? – would have a direct bearing on his standing.

Meanwhile attorneys for al Hawsawi and Ramzi bin al Shibh argued that their clients should not be able to speak if they were to attend. Lawyers for these detainees are arguing that they may not be competent to stand trial, an argument that could be undercut if they began making statements in court.

Got it?

Well, unfortunately the prosecution did not.

When Robert Swann, a lead prosecutor, called the officers in charge of the detention facililty to relay the judge’s decision, he got it wrong. The judge was willing to provide the three detainees who are representing themselves five minutes to speak, but he ruled that the other two defendants would not be allowed to speak. The prosecutor said that all detainees who attended the proceedings would have a chance to speak.

To make matters worse, the officer who manages high value detainees then threatened the detainees that their “privileges” (regular meetings with attorneys and access to a laptop to prepare for their trials) “could be” revoked if they did not attend the day’s hearing. Neither the judge nor the prosecutor suggested in court that this could be the case.

After al Hawsawi left, Ali Abdul Aziz Ali told the court, through his attorney, that he had only come to the court to protect his privileges. He said that he felt like he had been “blackmailed.”

The whole incident took an additional 45 minutes to sort out.

Observers were left scratching their heads.

Why would a system be in place where the jailers and the prosecutor are so intimately linked? Why is it up to the prosecutor to communicate the judge’s orders to the detainees?

And, well, wouldn’t we be better off in federal court where these sorts of snafus were much less likely to dominate the court’s agenda?

At the end of the day, it was unlikely that the cases against the accused could move very far forward this week. Too much depends on changes the Obama administration is mulling to the structure of the commission process.

But what little did happen does not inspire confidence, since even the most basic issues like summoning detainees from their cells for a motion led to mistakes, confusion and frustration.

Throughout the day, the judge and many of the attorneys labored as best they could under a system that is constantly evolving. But at the end of the day many were left wondering if such a complex case might be better off in a more mature setting that is better equipped to handle these issues.

In the last 20 years, U.S. federal courts have handled more than 120 terrorism cases. Federal courts are equipped to try big time terrorism cases– now it is just up to the politicians to recognize that what is happening at Guantánamo is not the best option.

David Danzig is Deputy Program Director at Human Rights First.

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