Thank you for sharing!

Your article was successfully shared with the contacts you provided.
GUANTANAMO BAY, CUBA — Pentagon officials hoped the first military commission hearings convened in the war on terrorism would allay critics’ concerns and demonstrate to the world the integrity of the untested system. Instead, as the administration’s legal experiment got under way last week in a tightly guarded courthouse at the U.S. naval base here at Guantanamo, the proceedings seemed to exacerbate the confusion and unease surrounding the process. Of the specific questions that emerged from last week’s proceedings, few have ready answers. For instance: Are military officers with no legal training competent to serve as judge and jury in cases involving complex issues of international law? Can defendants before military commissions represent themselves? Must commission members be disqualified if their participation creates the appearance of bias? “This process is so ill thought out in its formulation that the people in the process don’t have any idea what they need to do,” said New York criminal defense lawyer Joshua Dratel, lead attorney for Australian detainee David Hicks, during a press briefing. In the coming weeks, prosecutors and defense lawyers in the four initial cases will flood the commission with motions addressing the legality of the process under the U.S. Constitution, the Uniform Code of Military Justice, the Geneva Conventions, as well as domestic and international law. Hicks’ lawyers plan to file 17 separate motions themselves to dismiss their client’s case. Air Force Brig. Gen. Thomas Hemingway, legal adviser to the military commission appointing authority, said he believed the first week of proceedings demonstrated that the tribunals will ultimately provide due process for the detainees. “I’m confident the system is going to work,” Hemingway told reporters at a Pentagon briefing Aug. 26. He added, “Historically, these kinds of tribunals are conducted after the conflict is over and there’s not as much in the way of a national security concern as there is now. But the procedures have been set up to not only provide fairness but also to address the national security concerns that the United States has.” UNTRAINED EYES Though largely administrative, last week’s hearings provided a glimpse of the four detainees selected by White House and Pentagon lawyers to face the first commission trials. The defendants — two from Yemen, one from Australia, and one from Sudan — have each been charged with conspiracy to commit war crimes, among other charges. Under commission rules, defendants are innocent until proven guilty and are assigned at least one military defense lawyer at the government’s expense. Those charged before commissions cannot be forced to take the witness stand, and convictions require a two-thirds vote of the panel on the basis that the defendant is guilty beyond a reasonable doubt. The Pentagon retains tight control over the entire process, not only in drafting the charges and rules of procedure, but also by appointing commission members, approving charges, reviewing commission findings, and imposing sentences. There is no provision for defendants to appeal to an independent court, and the rules of evidence are more lenient than those used in the U.S. civilian or military justice systems. Critics complain that the system is tainted because it denies military prisoners the same process afforded to members of the U.S. armed forces as required under the Geneva Conventions. They also complain that the system requires military officers without formal legal training — many of whom struggled last week when asked by defense lawyers to discuss the concepts of “jurisdiction” and “beyond a reasonable doubt” — to make determinations on complicated legal questions. “How can you have people serving as deciders of law and fact who don’t understand basic legal vocabulary?” remarked Deborah Pearlstein, director of the U.S. Law and Security Program at Human Rights First, who attended the hearings. “These are clearly good people who are trying to do the right thing. Unfortunately, they have been placed in a very poorly devised system.” STANDING ALONE The ambiguity in the nascent system became apparent at several points during last week’s hearings, most strikingly in the case of accused al Qaeda propagandist and bodyguard Ali Hamza Ahmad Sulayman al Bahlul. For four months, Bahlul has refused to work with his assigned military defense lawyers and requested to represent himself. He repeated his request to the commission at an Aug. 26 hearing in his case. Initially, presiding officer Army Col. Peter Brownback III responded by reading from military commission rules stating that defendants “must be represented at all relevant times by detailed [military] defense counsel.” “The answer is no, you’re not allowed to represent yourself,” said Brownback, a retired military judge. But later Brownback seemed to relent, engaging Bahlul in a dialogue about his education and understanding of the law. Brownback agreed to forward Bahlul’s verbal request, along with legal briefs from either side, to the appointing authority for a determination. In addition, Bahlul, who is from Yemen, asked that the commission consider allowing him to retain a Yemeni lawyer as part of his legal team. He stated that if he is not allowed to represent himself, he does not wish to attend proceedings. Anthony Romero, executive director of the American Civil Liberties Union, said the request should have been an easy call. “This is one area where the rules state rather clearly that the accused is not able to represent himself, and yet the presiding officer muddied the waters,” Romero said. Bahlul’s case has been put on hold pending a decision. At last week’s press briefing, Hemingway said he believed that Brownback acted prudently, given the circumstances. “It says to me that the presiding officer was trying to carefully determine whether or not the individual could capably represent himself if that opportunity were presented. I think it was a very appropriate thing to do,” Hemingway said. “It sounds to me like the presiding officer was trying to be as cautious as he could.” WAR WOUNDS The initial proceedings exposed a number of potential conflicts among the military officers appointed to try the cases. Two of the five panel members served in Afghanistan in support of U.S. operations close to the time when the four defendants were detained. Marine Corps Col. R. Thomas Bright coordinated the logistics of transporting detainees from Afghanistan to Guantanamo Bay in early 2002, and Air Force Lt. Col. Timothy Toomey served as an intelligence officer in Afghanistan from November 2001 until February 2002. Defense lawyers for Hicks and Yemeni defendant Salim Ahmed Hamdan moved to exclude both officers for good cause. “Putting someone on this panel who was intimately involved in detention operations . . . does not give confidence to the accused or to the world that this process will be full and fair,” said Hamdan’s lawyer, Navy Lt. Cmdr. Charles Swift, during proceedings on Aug. 24. The same defense teams challenged Marine Corps Col. Jack Sparks Jr., who served as commanding officer to a reservist who died in the World Trade Center on Sept. 11, 2001, and alternate panel member Army Lt. Col. Curt Cooper, who said he felt “very angry” about the Sept. 11 terrorist attacks. During questioning, Sparks said the personal tragedy would not influence his ability to be impartial. “I’ve been in the Marine Corps for 25 years,” Sparks said. “It’s not the first Marine, unfortunately, I’ve seen die.” Defense attorneys for al Bahlul and Sudanese detainee Ibrahim Ahmed Mahmoud al Qosi have not yet made any challenges because their cases have not reached the voir dire stage. Commission rules provide that the appointing authority can dismiss members for good cause, but, unlike the rules for a court-martial, the rules do not permit peremptory challenges for either side. Both sides will submit briefs on what the appropriate standard should be. Marine Corps Lt. Col. Kurt Brubaker, who is leading the prosecution of Hicks, said it would be difficult to find a panel of military officers not affected in some way by Sept. 11. “The standard should come back to what good cause is understood to be — a member’s inability to be fair and impartial in accordance with providing a full and fair trial,” Brubaker said during the hearings. PERSONAL TIES Attorneys for Hamdan and Hicks further argued that Brownback should be removed from the panel due to a personal friendship with the official who appointed him to his post and who will ultimately review the panel’s findings. Brownback became acquainted with military commission appointing authority John Altenburg Jr. when both were stationed at Fort Bragg, N.C., in the early 1990s. Brownback served as chief circuit judge, and Altenburg served as the installation’s top legal adviser. Brownback’s wife, also an Army officer, worked for Altenburg. When Brownback retired in 1999, Altenburg presided over the formal retirement ceremony and was the primary speaker at Brownback’s roast. Two years later, Brownback spoke at Altenburg’s retirement. Brownback was recalled to active duty for the commission; Altenburg serves in his current capacity as a civilian. “I think John Altenburg wants me to preside over a full and fair trial of these people. I base that on four years of close, close observation of him and my knowledge of him,” Brownback stated in response to questions from Hicks’ attorney Dratel. The only panel member defense lawyers for Hamdan and Hicks did not target was Air Force Col. Christopher Bogdan, who served as the stateside commander of a unit equipping unmanned aircraft with Hellfire missiles during U.S. operations in Afghanistan. Bogdan — who acknowledged receiving a fitness report commending him for “fantastic results tracking and killing Taliban” — was not stationed in Afghanistan and seemed to impress defense lawyers with his answers during voir dire. He described his role in Operation Enduring Freedom as a “force provider” and said he had no knowledge of tactical plans. The challenges to specific commissioners will now go to Washington, D.C., for a decision from the appointing authority, placing Altenburg in the awkward position of reviewing his own decisions. Defense lawyers for Hicks are also moving to dismiss the panel in its entirety, arguing that military commission members should not be hearing multiple cases at one time. Dratel called the situation “unfair,” adding, “It’s beyond the scope of anyone’s capability to be a juror in two cases.” With several challenges pending in U.S. federal courts, it is not entirely clear what will happen next. Lawyers for Hicks and Hamdan plan to seek preliminary injunctions against the commissions from the U.S. District Court for the District of Columbia. Brownback indicated that the panel would hear oral arguments on motions in some cases during the first week in November. A trial date of Jan. 10, 2005, was set for Hicks. Meanwhile, an additional 11 detainees have been identified as subject to trial before military commissions. One Defense Department official said additional charges would be forthcoming.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.