Observations from the Guantánamo Arraignment

By Professor David Glazier

The experience of observing Saturday's military commission arraignment of the five alleged 9/11 conspirators in Guantánamo Bay, Cuba on behalf of the National Institute of Military Justice left me with serious concern that systemic issues, many involving "outside" agencies, particularly Joint Task Force Guantánamo (JTF), are likely to preclude the exercise of meaningful attorney-client coordination. This in turn will call into question whether these trials are sufficiently fair as to merit contemporary, and ultimately historical, public approval. These concerns are separate from any issues about the substantive law being applied; my comments in this post are limited to matters observed at Guantánamo.

First let me acknowledge some positive points. The government has promised greater transparency in the commission process, and the establishment of additional remote sites where the trial can be viewed as well as the unprecedented same-day internet posting of unofficial trial transcripts (from this link one must go to "Khalid Shiek Mohammed et al. 2 and then to "transcripts") are both good news in this regard. And on some matters Judge Pohl went out of his way to demonstrate "fairness" to the defendants, announcing recesses for prayer times sua sponte, pausing the trial to allow conversion from the planned simultaneous Arabic translation via headphones to sequential translation broadcast via overhead speakers, saying nothing about Bin Attash's offensive paper airplane, tolerating prayers at times other than actual prayer times, etc. While quality translation is essential to a fair trial where not all defendants speak adequate English, most observers, even commission critics, thought Pohl actually went too far in most of these accommodations. There was unanimous agreement among trial observers with federal practice experience that no U.S. federal judge would have tolerated such breaches of courtroom decorum as unscheduled prayers or defendants making paper airplanes, and few, if any, federal courts would have recessed for prayer times falling outside reasonable mealtimes.

But the obvious "considerations" extended the defendants mask broader concerns which threaten the trial's ultimate credibilty. As a matter of law, these need not necessarily have been addressed Saturday. Colonel Pohl was likely on solid legal ground in deferring the motions that defense attorneys repeatedly tried to push forward until the next court session in June. And some of the defense concerns may well lack objective merit -- there are always two sides to every story. Nevertheless, the aggregate impression I came away with was that the defense had a number of legitimate issues about detainee treatment impacting their ability to mount a defense that were not merely frivolous attempts to delay the proceedings. Deferral of these issues, even if legally permissible, now impacts their ability to press ahead with trial preparation, and may introduce further delay into a trial the judge unilaterally suggested was still at least a year away.

It was very evident from the very limited interactions between the defense lawyers and the defendants that few, if any, had established any meaningful trust-based attorney-client relationships. The defendants' previous treatment in U.S. custody clearly impacts their willingness to trust any U.S. government personnel, particularly uniformed military, as well might their ideological perspectives. Those issues are largely beyond the scope of the commission's ability to redress. But concerns that can be dealt with include classification rules making it virtually impossible for attorneys to have meaningful discussions with their clients about the practical impact of past treatment, including most importantly the admissibility of prior statements. In this regard it was rather amazing that when most of the attorneys said they didn't fully understand the commission classification rules in a colloquy about their willingness to abide by them, the judge accepted what he termed as "hollow" yeses from them in order to proceed through his script.

There is obviously real concern with defense counsels' ability to confer with their clients outside of the courtroom that require judicial addressal. JTF rules forbid telephonic communication, and the unilateral JTF decision to read, rather than merely inspect, properly marked attorney-client mail, has resulted in ethical rulings that the defense cannot communicate with clients by mail. This leaves only face to face visits, and anyone who has gone through the clearance and travel process to GTMO can understand how onerous this is.

Detention policies also impact defendant's courtroom presence. Attorneys complained Saturday that they had provided their clients appropriate civilian garb to wear to the hearing, but JTF staff refused to let them wear it. One lawyer said he was told by a JTF Colonel, that's "not happening" about the defense-provided vest and that he could provide a business suit or nothing. No officer of the court had any insight into the process used to bring the defendants to the courtroom or why one defendant, Bin Attash, was strapped into a restraint chair as the proceedings began. The judge presumed that he must have resisted coming to the commission and left him tightly restrained for the first hour or so of the proceedings until the inability of headphones to remain on his head led to the ultimate decision to switch from simultaneous to sequential translation and further discussion about the pain inflicted by the restraints. This discussion finally resulted in him being unstrapped from the chair and allowed to sit normally. It was only very late in the day that any defense attorney had had sufficient conversation with their client to raise allegations that they had to undergo strip searches prior to entering the courtroom that morning, and that it was likely that this would cause at least some of the men to elect to skip future trial sessions if that was the only way to avoid that process.

It is certainly true that even in civilian court systems pre-trial confinement management is generally in the hands of authority other than that of the actual courts. But federal prison rules, for example, explicitly mandate that prisoners be able to receive attorney calls; absent a warrant attorney-client mail can be searched for physical contraband but not read; and lawyers and support staff are assured of reasonable face-to-face access to their clients. Moreover, they can simply drive to the prison and park, even if it might be some hours away -- they don't have to engage in the multi-day advance process to coordinate travel followed by the expenditure of multiple days of travel for a single visit. And it is the judge, not the jailor, who decides what is appropriate for defendants to wear in civilian courtrooms.

These are issues that require addressal if any credible defense efforts are to be mounted. And while the defense attorneys seemed obstructionist by repeated allusions to them after the judge made it clear they would not be addressed Saturday, it is understandable that they felt the need to get these considerations both into the record, and before the public.