By Professor David Glazier
I am currently in Guantánamo as the National Institute of Military Justice (NIMJ) observer at the scheduled May 5 arraignment of the five alleged 9/11 co-conspirators. Tonight I had the opportunity to attend back-to-back press conferences by James Connell, the civilian "learned counsel" representing one of the five defendants, Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and the second by Chief Prosecutor Mark Martins, whose prepared statement is already posted at the Lawfare Blog.
Connell addressed the long delay in the prosecution and previous false starts, suggesting that Saturday's arraignment marked only the beginning of a multi-year process that could still be in progress in ten years time should the Supreme Court strike down the new military commissions as they did once before. But most of his discussion focused on the secrecy of the proceedings, and how he was legally prohibited from saying anything at all about his client's intention because of the government's insistence that anything a detainee formerly held in CIA custody said was presumptively classified at the Special Compartmented Intelligence (SCI) level. The ACLU has filed a motion that I think does an excellent job of addressing the impact of this approach on the public's right to know (full disclosure -- I authored a supporting declaration on historic military commission practice but played no role in drafting the actual motion). But the major adverse impact this secrecy has on Guantánamo defense teams' ability to represent their clients is a topic significantly underreported to date, and Connell's remarks only scratched the surface of the issue.
Connell also explained the one significant development today -- the military judge had intended to conduct an informal session with only counsel present (called an "802 hearing" after the Military Commission Rule 802 addressing the subject). The judge's staff began notifying the defense counsel of his intention, and according to Connell, attorneys for the first two detainees who were notified both said they would come only if the hearing was recorded so that it could eventually be included in the formal trial record. Shortly thereafter word was sent to the attorneys that there would be no 802 hearing today, meaning that tomorrow's arraignment will proceed without any formal pre-coordination
Connell was followed by Chief Prosecutor Martins who gave a polished defense of the commissions' fairness. I think it odd that the individual charged with prosecuting the defendants has taken upon himself the role of head cheerleader for the commission process. One might remember that Morris Davis did this several years ago in his tenure in that job, resulting in significant complaints about his extrajudicial commentary that would have been a subject of some judicial discussion had David Hicks not cut it off by pleading guilty. And Martins should have his focus on fulfilling his ethical responsibilities to do justice in the prosecutions -- the Convening Authority certainly can call on other resources such as his own public affairs staff to defend the commissions.
In any event, as a scholar of the military commission process since their announcement in 2001, I found many of Martins' comments to be less than fully candid. Here just a couple of examples:
(1) He cited the detainees right to represent themselves but neglected to mention that prosecutors previously successfully insisted that al Bahlul be denied that right at trial (before Martins took over), and then unsuccessfully sought to have the D.C. Circuit Court of Appeals reject his appeal because the prosecution believed that he no longer wanted an attorney to represent him. (This was on Martin's watch).
(2) He suggested that the press should be skeptical of defense claims they are under-resourced and read the government's filing on the issues. And he noted in Q&A that Congress had called for the defense to have comparable access to witnesses and evidence as provided in Article III courts. But what he did not tell the media was that military commission defense teams must go to the Convening Authority or the judge to seek resources, and unlike Article III courts must submit witness requests to the prosecution, and that the Guantánamo prosecutors contest almost every request made by every defendant. When the defense in a federal trial requires assistance from a court, they are typically allowed to make such requests on an ex parte basis with no opportunity for the government to object. And international criminal law -- which should supply minimum due process standards for a trial supposedly based on the law of war -- now calls for "equality of arms" between prosecution and defense, a standard clearly not met by the commissions.
(3) His assurance that no statement obtained through coercion will be used rings hollow based on the prosecutions observed track to date, in which virtually every case to date was based largely on statements from detainees who had been subjected to varying degrees of coercive interrogation, and several prosecutors have cited pressure to use tainted statements as at least part of their reasons for resigning.
I can't help but find myself comparing Martins' approach with that of Justice Robert Jackson before Nuremberg. Jackson cautioned that the Nuremberg tribunal must be fair to merit international credibility, and dedicated himself to achieving that result. Martins insists that the Guantánamo tribunals are fair in the face of international doubts about their credibility, and has seemingly dedicated himself to persuading us of that belief.