Walk into any criminal courtroom in America, no matter where, no matter whom the players, no matter what the charges, and you'll see a familiar script being played out. It's familiar because what happens there is governed by a mountain of precedent and laws built on a bedrock foundation known as the U.S. Constitution. This is the essence of what we call "the rule of law."
In the surreal world of Guantanamo's military commissions, which I attended last week, the government spares no expense and effort to control every movement in order to mimic, but avoid true operation of, the rule of law. For example, every time new charges are filed, the Pentagon recites the mantra that the accused is presumed innocent until proven guilty; that charges must be proved beyond a reasonable doubt; that the burden of proof is on the government; that the accused has the right to counsel, to remain silent and to present evidence -- all of which sounds ever-so-familiar, if not comforting, to any American who has ever encountered the legal system, or for that matter, a television.
Beneath the surface, a very different and highly ordered chaos is playing out. Prisoners have endured years of isolated detention, coercive interrogation and torture in violation of U.S. and international law before they were appointed lawyers and charged with crimes. Officials publicly and repeatedly paid homage to the presumption of innocence by declaring the men "natural born killers" and "the worst of the worst." After charges are filed, the government makes sure the press and NGO observers know that military lawyers are appointed to represent the accused free of charge. It did not, however, inform us of the tremendous obstacles it enforces to inhibit communication between lawyers and the accused, between the lawyers among themselves, and between the accused and the court.
Consider this. According to one defense attorney assigned to represent Khalid Sheik Mohammed (KSM), the alleged (and admitted) al Qaeda "mastermind" of the 9/11 "planes operation," the government has determined that everything the accused prisoners say is classified. If KSM expresses a preference for tea over coffee, it's a state secret. If one of his lawyers is in Los Angeles and the other in New York, they both would have to travel to a government controlled secure facility to discuss the tea vs. coffee matter. The government has also been systematically obstructing communications between the prisoners and lawyers. KSM complained in court that he is allowed only one piece of paper at a time. The judge, Marine Col. Ralph Kohlmann, with no hint of irony, told him he would have to file a written motion to complain about being denied the paper necessary to file a written motion. KSM did not say how long he has to wait to have one piece of paper removed by prison guards so that he can receive a second one. The government, meanwhile, claims to have delivered 14,000 pages of documents in his case, which he has a right to see. At the rate of, say ten pages a day, he could see it all in just less than four years.
If a prisoner does finally manage to cobble together a communication, for example, to the judge, there is no mechanism to insure that it is actually delivered. More than one prisoner complained that the judge had apparently not received their motions -- requests that the court act on various matters related to the trial. One of the accused, Ammar al Baluchi, complained that his jailers took ten days to submit a document of his to the judge. Meanwhile, the government's motions appear to reach the judge almost instantaneously.
The government has spent untold millions of taxpayer dollars on the infrastructure for Guantanamo prison camps and military commissions, rather than rely on the resources of the existing civilian or military criminal justice systems. But what about the accused who don't speak English well enough to understand the proceedings or documents presented? They need, and are entitled to, accurate translation and competent in-court interpreters. And yet, the quality of translation has been, at best, poor and unprofessional. Judge Kohlmann, meanwhile said in court that there is no requirement to translate all military commission paperwork into Arabic for detainees defending themselves.
There is, according to the government, no Constitution upon which the defendants and their lawyers can rely to make the government walk the walk, rather than just talk the talk, of fair trial. Geneva Conventions? Not here. International human rights law? Negative.
The Military Commissions Act (MCA), which is the architecture for these trials, pretends merely to implement the laws of war, but explicitly prohibits the accused from relying on the Geneva Conventions' detailed provisions for fair trial. Respect for international law at the Military Commissions is so low that any attempt to assert the requirements of human rights treaties that the U.S. has agreed to honor is seen as a sign of desperation.
Those responsible for the horrendous crimes against humanity must be held accountable through the administration of justice. And that's exactly what cannot and will not happen at Guantanamo because without fair process there can be no justice, only endless litigation and appeals and an absence of public confidence in the results.
Take, for example, the right of the accused to act pro se (to represent himself) enshrined in the MCA. Several of the accused have asserted this right, explaining that they are declining representation by counsel on moral and religious grounds. The judge, fearing that Khalid Sheikh Mohammed, may have intimidated the others into declining counsel, scheduled individual sessions with each of the five in order to confirm their pro se decision and that it was voluntary. Three reiterated their decision to reject counsel. (Only four hearings were held because one of the accused, Ramzi bin al Shibh, who has been given psychotropic medications, refused to attend. His competence to stand trial is in issue). Another prisoner, Mustafa Ahmed Adam al Hawsawi, complaining of the restrictions on the lawyers, pointedly asked Judge Kohlmann, "If you don't trust the lawyers, why should we?" Al Hawsawi said that he had not yet decided about representation but denied, as did the other three, that he was subjected to threats or intimidation in connection with this decision. The military lawyers that the government selected to represent the accused were then designated as "stand-by counsel" (to take over in case circumstances changed) and civilian lawyers were designated as "consultants."
As with other rights, the right to pro se representation is more window dressing than reality at Guantanamo. How can a person in custody prepare his own case without access to paper, research materials (a law library) or a computer?
In a real court, the judge is independent of the prosecution. She is the face of the judicial branch, which is separate from the executive branch that brings the charges and the legislative branch that makes the laws. She can order the government to provide paper, law books, the means for the accused to communicate with the court and with lawyers, and competent interpreters. But under the Military Commissions Act, Judge Kohlmann and the prosecution are both part of the same chain of command. He can no more make the military commissions fair than he can make pigs fly. One journalist asked me if being a human rights observer at these proceedings isn't a bit like shooting fish in a barrel.
Which brings us back to the tried and true, although by no means perfect, institution that is the regular American judicial system. Supporters of Guantanamo-style justice, as reflected in either the existing military commission system, or a proposed "national security court' to handle terrorism cases, argue that the regular, federal criminal courts are not up to the challenge. They are wrong.
Human Rights First recently released a study conducted by former federal prosecutors, evaluating the experience of the federal courts in over 120 international terrorism cases, some before and most after 9/11. The study, "In Pursuit of Justice: Prosecuting Terrorism in the Federal Courts," found that the courts have successfully handled the challenges presented by these cases, most significantly, the protection of sensitive information and the need to charge individuals for preparatory acts and for conduct occurring abroad. It also found that criticism about soldiers being required to issue "Miranda" warnings and conduct criminal investigations while under fire is simply misplaced. Because this system works, it enjoys public confidence and is capable of delivering true justice and accountability.
This is not to say that federal prosecution is the silver bullet answer to terrorism. Other strategies such as intelligence gathering, interruption of terrorism financing, diplomacy and even the use of armed force have their place. But when the question is "According to what legal architecture should we detain and try terrorist suspects?" the answer is in plain sight, not in some hidden, secret place on the distant tip of a Caribbean island.
Gabor Rona is the International Legal Director of Human Rights First