By Marjorie Cohn
The piece first appeared on Truthout.
The issue of terrorism has been front and center in the national discourse since 9/11. Guantánamo has become a symbol of US hypocrisy on human rights. Lawyers handling the criminal case of Guantánamo prisoner Abd al-Rahim al-Nashiri argued several pre-trial motions last week. But just as they raised some fascinating legal issues, the hearings revealed the basic unfairness of the military commissions for adjudicating criminal cases. People can be put to death after a trial that affords a reduced level of due process.
Defense motions raised issues of whether the Sixth Amendment’s Confrontation Clause applies in military commissions; whether a military commission can legally try defendants for the crimes of conspiracy and terrorism; whether the government has been eavesdropping on confidential attorney-client communications; whether the accused can be excluded from pre-trial sessions in which classified information is discussed; whether the defense is entitled to parity with the prosecution in subpoenaing witnesses; and how much discovery the prosecution must turn over to the defense. Judge James Pohl took the motions under advisement. That means he postponed ruling on them until later.
In 2006, in Hamdan v. Rumsfeld, the Supreme Court struck down the military commissions President Bush established in 2001 because their procedures did not comply with the Uniform Code of Military Justice (UCMJ) and the Geneva Conventions. The Court ruled that members of al-Qaeda are entitled to the protections of Geneva’s Common Article 3, which includes being protected from the “passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”
The Hamdan Court also said the commissions must follow procedural rules that basically parallel courts-martial proceedings under the UCMJ. Yet the Military Commissions Act of 2009 (MCA) [sec. 948b] says the UCMJ “does not, by its terms, apply to trial by military commissions except as specifically provided in this chapter.” It declares that this chapter is “based upon the procedures for trial by general courts-martial under [the UCMJ], ” but it also provides that “[j]udicial construction and application of [the UCMJ], while instructive, is therefore not of its own force binding on military commissions.”
It remains to be seen whether the new, improved military commissions will pass constitutional muster if and when they get to the Supreme Court.
The Defendant’s Right to Confront Witnesses Against Him
The defense sought a ruling from the judge that the Confrontation Clause of the Sixth Amendment to the Constitution applies in this military commission in which the accused can get the death penalty. In Boumediene v. Bush, the Supreme Court ruled that Guantánamo detainees have a constitutional right to habeas corpus, since, although Guantánamo is on Cuban soil, the United States exercises complete jurisdiction and control over the US base there. Thus, the al-Nashiri defense argued, other constitutional rights, including the right to confrontation, apply in military commissions held at Guantánamo.
The Confrontation Clause gives the accused in a criminal case the right to confront and cross-examine witnesses against him. When the prosecution presents hearsay statements of unavailable witnesses, the accused is denied the right of cross-examination. As Justice Scalia wrote in the leading Confrontation Clause case, Crawford v. Washington, the Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”
Hearsay is a statement that was made out of court but later offered at a hearing to prove the truth of the matter asserted in the statement. Although hearsay is presumed inadmissible unless it fits one of the exceptions in federal courts, the Military Commission Act (MCA) makes it easier to secure the admission of hearsay in military commission trials.
The Federal Rules of Evidence contain several exceptions to the ban on hearsay evidence, and many of them require that the person who made the hearsay statement be unavailable to testify at the present hearing. But when the proponent of the hearsay statement wrongfully procures the unavailability of the absent witness, the exception won’t be available as a vehicle to admit hearsay statement. This is called forfeiture by wrongdoing.
The prosecution wants to use the testimony of Fahd al-Quso against al-Nashiri. Al-Quso is unavailable to attend the trial because the US government killed him in a drone strike last year in Yemen. Thus it could be argued that the prosecution (the government) wrongly procured al-Quso’s unavailability by killing him.
In Giles v. California, the Supreme Court held that in order for forfeiture by wrongdoing to prevent the admission of a hearsay statement, the proponent of the statement must have killed the witness to prevent him from testifying. Thus, the defense will have to prove that the government killed al-Quso to prevent him from testifying against al-Nashiri.
The defense argued that the prosecution’s evidence will seemingly be full of unreliable double- and triple-hearsay (for example, “he said she said that he said X”). FBI reports in these cases typically contain hearsay statements of witnesses from Yemen, Afghanistan or Pakistan who are not available for trial.
The Constitution governs courts-martial and the evidentiary rules courts-martial use largely follow the Federal Rules of Evidence. Thus, it should be a no-brainer that the Constitution’s Confrontation Clause would apply in military commissions. Nevertheless, Judge Pohl seemed inclined to decide on a case-by-case basis.
The Crimes of Conspiracy and Terrorism Are Not Triable Under the Law of War
The defense asked the judge to dismiss the conspiracy and terrorism charges against al-Nashiri. Military commissions were established to try war crimes. The commissions are bound by Congress’ power to “define and punish ... Offenses against the Law of Nations.” In order to vest a military commission with jurisdiction over an offense, it must be an established offense of that subset of the law of nations known as the law of war.
Conspiracy is not part of the law of war. A plurality of the Supreme Court stated in Hamdan that conspiracy is not a war crime under the traditional law of war. Terrorism is also absent from the law of war. In Tel-Oren v. Libyan Arab Republic, the DC Circuit Court of Appeals affirmed that terrorism itself is not an offense against the law of nations. The Second Circuit reaffirmed the lasting force of Tel-Oren in United States v. Yousef.
Salim Hamdan was tried under the Military Commissions Act of 2006. He was acquitted of conspiracy but convicted of providing material support for terrorism for acts done between 1996 and 2001. He appealed and, in 2012, in Hamdan II, a three-judge panel of the DC Circuit Court of Appeals reversed his material support conviction, holding that the 2006 MCA did not intend to criminalize pre-2006 conduct that was not considered a violation of the international laws of war. The panel concluded that material support was not a violation of the international law of war.
Ali Hamza Ahmad Suliman al-Bahlul was convicted of conspiracy by military commission. A three-judge panel of the DC Circuit reversed his conviction but the entire DC Circuit decided to hear the appeal. So this issue is currently pending in the Court of Appeals in Al-Bahlul.
These issues may well get to the Supreme Court. If prosecutors are foreclosed from charging conspiracy and terrorism in the military commissions, they may only be able to try high-level terrorism suspects in the commissions, for crimes such as murder, attacking civilians and hijacking. It is the “smaller fish” who have been charged with conspiracy and terrorism.
The prosecution asked the judge to dismiss the conspiracy charge against al-Nashiri but then tried to “bargain” with the defense and the judge to allow jury instructions on vicarious liability. That would mean that al-Nashiri could be convicted even if he didn’t personally carry out the crimes charged. The defense was adamantly opposed to the prosecutor’s proposed bargain.
Eavesdropping on Confidential Attorney-Client Communications
In February, it was revealed that the rooms in which attorneys meet with their clients at Guantánamo were equipped with listening devices made to look like smoke detectors (even though smoking is not allowed there). The attorney-client privilege is part of federal law, and the Supreme Court has interpreted the right to counsel under the Sixth Amendment to include the right to effective counsel. It is well established that an accused does not enjoy the effective aid of counsel if he is denied the right of private consultation with him. Yet there is no provision in the MCA that addresses the monitoring of communications between the accused and his attorney.
At the hearing last week, the defense asked Judge Pohl to temporarily suspend the proceedings until the defense could be fully informed of the extent of any third party monitoring of defense communications during legal visits with their clients. The defense also asked that necessary precautions be taken to ensure that such monitoring not take place in the future.
Neither of the two witnesses who testified at the hearing had knowledge of any eavesdropping on defense communications. But Navy Capt. Thomas Welsh, the Staff Judge Advocate for the Joint Task Force Guantanamo Bay (JTF-GTMO) testified that guards denied to defense counsel that any monitoring occurred because they feared they “could end up in court.” The defense raised dangers of such an “insecure” system.
Right of Accused to Be Present at All Hearings
A classified defense motion was heard in a secret session. The motion asked the judge to order the government to reveal information “related to the arrest, detention and interrogation” of al-Nashiri. Evidence obtained by torture or cruel, inhuman or degrading treatment is inadmissible in military commissions. Although al-Nashiri was tortured for several years while in custody at the CIA black sites, the judge said that al-Nashiri was not himself the source of the classified material at issue.
The defense sought to prevent al-Nashiri from being removed from the courtroom during closed sessions. If the accused is not allowed to hear the evidence, he could not assist his counsel in objecting to legally objectionable material. Richard Kammen, al-Nashiri’s lead attorney, said: “Let’s say in a hearing the government presents something in good faith that is simply untrue. Let’s say some agency gives them incorrect information. He will never be in a position to say to us, ‘That’s not true.’ And waiting til trial is way, way, way too late in a capital case.”
The UCMJ gives the accused the right to be present during all proceedings except jury deliberations. The MCA does not provide for the exclusion of the accused from any part of the trial unless he is disruptive, and classified information cannot be presented to the jury unless it is disclosed to the accused.
The Right of the Accused to Subpoena Witnesses
The defense requested that it be permitted to subpoena witnesses without requiring that the prosecution preview them. In the alternative, the defense asked for the right to see the prosecution’s witness list. The MCA provides, “The opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States.” The defense is seeking parity with the prosecution to protect the defendant’s right to a fair trial.
Providing Defense Counsel With Discovery Provided to Habeas Counsel
There are about 3,000-4,000 documents that the government turned over to al-Nashiri’s lawyer in his habeas corpus (civil) proceeding. The documents are currently under a protective order. In Boumediene, the Supreme Court held that a habeas court must have the authority to admit and consider relevant exculpatory evidence. Defense counsel in al-Nashiri’s military commission want discovery of those documents because they may contain potentially exculpatory information. The prosecution’s burden to produce discovery information in a capital case is greater than that in a civil proceeding. Moreover, the MCA says the accused is entitled to exculpatory and mitigating information known to the prosecution.
Scope of Exculpatory Evidence Provided in Discovery
The prosecution sent out to government agencies Prudential Search Requests requesting “information or documents potentially material to the preparation of the defense,” yet the prosecution refuses to provide the defense with all of the material it received. The prosecution says that in death penalty cases, mitigation evidence is “limited to evidence of an accused’s character, background, and the circumstances of the offense.” But the Supreme Court has defined mitigating evidence as “evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value. Thus, a State cannot bar the consideration of ... evidence if the sentence could reasonably find that it warrants a sentence less than death.” The prosecution is demanding the defense demonstrate that discovery is necessary, but the defense argues that the law provides for liberal discovery in order to protect the right to a fair trial.
Military Commissions Provide a Reduced Level of Due Process
Since Bush established the first military commissions in 2001, they have been controversial, so much so that the Supreme Court struck them down and Congress re-enacted them twice - once in 2006 and again in 2009 - providing slightly more due process each time. But the level of justice military commissions furnish remains inferior to that afforded in federal courts and military courts-martial. President Obama suspended the military commissions upon taking office in January 2009 in order to review whether to continue using them. In July of that year, he decided that military commissions were an appropriate forum for trying some cases involving alleged violations of the laws of war, even though he preferred federal criminal courts for detainee trials. Obama apparently chose political expediency over considerations of justice.
AP/Janet Hamlin, Pool
In this sketch by courtroom artist Janet Hamlin, taken Nov. 9, 2011, reviewed by the U.S. military, Abd al-Rahim al-Nashiri is seen during his military commissions arraignment at the Guantanamo Bay detention center.