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Terrorism tribunals are on trial

By John Hendren
Los Angeles Times

ART LIEN / AP Artist's sketch shows accused al-Qaida paymaster Ibrahim Ahmed Mahmoud al Qosi, at left with headphones, and attorney Air Force Lt. Col. Sharon Shaffer, standing.

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Unlike the Nazi war-crimes trials, which were conducted by seasoned legal specialists with the world looking over their shoulders, the opening round of the terrorist tribunals at Guantánamo Bay Naval Base last week seemed mired in uncertainty, inexperience and confusion.

As one session ended, the presiding officer appeared to be so blindsided by a defense maneuver that he sat for long moments with his face in his hands before issuing a ruling.

Repeatedly, the translation system broke down.

At one point, a defendant unexpectedly fired his court-appointed lawyer and began to blurt out a confession before officials could bring the situation under control.

And the outside world got only glimpses of the proceedings, which were carried out under such tight restrictions that access was limited and no photographic, television or audio record of what went on are ever to be released.

	MARK WILSON / KNIGHT RIDDER NEWSPAPERS Military police escort a detainee at Guantánamo Bay Naval Base in Cuba, where a U.S. military tribunal last week held preliminary hearings for four men accused of having ties to al-Qaida.

After four days, the handful of international observers allowed to attend threw up their hands in disbelief and declared the system "fatally flawed."

Said Jamana Musa of Amnesty International, "There were times when I actually had to think to myself, 'They're actually planning on prosecuting people in this forum.' It was mind-boggling."

Despite problems, Army Col. David McWilliams, chief spokesman for the commission, said the week proved the commission's proceeding was "rounded but needed to be refined."

The Nuremburg Tribunals, which convened in Germany on Nov. 20, 1945, were conducted under the auspices of the United States, France, the United Kingdom and the Soviet Union.

As that tribunal opened, the presiding officer noted that a copy of the indictment in German had been furnished to each defendant, that all the defendants were represented by counsel — in almost all cases, counsel of the defendants' own choosing — and that the prosecutors had made available to "defending counsel the numerous documents upon which the prosecution rely, with the aim of giving to the defendants every possibility for a just defense."

System dormant for 50 years

The proceedings last week against four accused members of al-Qaida taken into custody in Afghanistan employed a military commission, or tribunal, system not used for more than 50 years.

Used in a handful of cases during World War II, notably against a group of Nazi saboteurs captured on the East Coast, the commission system had been abandoned until President Bush revived the idea as a way of prosecuting accused terrorists after the Sept. 11 attacks.

As a result, the five-member panel of military officers convened for the first such trials last week had few precedents to follow. They often seemed unclear what rules or legal procedure should be followed.

On Thursday, defendant Ali Hamza Ahamad Sulayman al Bahlul refused his military lawyers' aid and got halfway through a statement in which he appeared to confess before the presiding officer cut him off.

Col. Peter Brownback appeared to be caught off-guard by the defendant's action and concerned that the trial could be prejudiced if a defendant confessed before he was sworn in and had counsel.

"People of the entire globe, know that I testify that the American government put me under no pressure. I am from al-Qaida and the relationship between me and Sept 11 ... ," Bahlul said before Brownback ordered him to stop talking.

Earlier, questioning of the lone alternate member of the commission highlighted the limited legal backgrounds of panel members, despite the complex issues they are expected to deal with.

A defense attorney, Navy Cmdr. Charles Swift, asked the alternate if he understood the primary source of international law. "Do you know what the Geneva Convention is, sir?" Swift asked.

"Not specifically. No, sir," a resolutely frank Lt. Col. Curt S. Cooper answered. "And that's being honest."

That incident and others led observers from nongovernmental organizations to call for an all-lawyer panel.

"We've asked five very able commission members, who have essentially no legal training, to decide complex questions of constitutional and international law," said Deborah Pearlstein, an observer with Human Rights First.

"And they are struggling with the definition of 'jurisdiction,' of 'due process.' Those terms are so basic. It calls the credibility of the entire process into question when we don't even have a baseline to start."

"Not only are we using a form of tribunal that hasn't been used since World War II, we're also holding these proceedings in an isolated location," Pentagon spokesman McWilliams acknowledged.

"We need to ensure we're comfortable with translation," he said, "but I think the legal process did exactly what it needed to do. It allowed for zealous defense under public scrutiny."

Scrutiny had its limits

On the order of retired Maj. Gen. John Altenburg, who has authority over the commissions, fewer than 100 people witnessed each session. No one outside the courtroom and neighboring viewing room is ever to see a picture of the proceedings.

They were not televised, broadcast or photographed. No Nuremburg-like images of alleged war criminals were recorded.

Five human-rights workers and 54 journalists from 37 news organizations descended on this U.S.-occupied sliver of Cuba to witness the proceedings. But they had to write fast.

The eight reporters in the hearing and 29 in the viewing room were allowed to have only pen and pad. Video cameras carried the courtroom scenes to the viewing room, but no tape or film record was kept, officials said.

Only a written transcript is to be kept. A recording for court reporters, undisclosed until a dispute over translation erupted Thursday, will never be released to the public, McWilliams told reporters.

With the fledgling commission struggling to establish its own precedents on the fly each day, many questions were referred to Washington, D.C. For example, Altenburg will decide whether Bahlul can represent himself, as well as what to do about a request to alter the rules so that one defendant could hire a Yemeni lawyer.

"It does sound to me that there was a severe lack of preparation," said Eugene Fidell, president of the National Institute of Military Justice, a nonprofit organization made up mostly of lawyers who participate in military trials. "There was less familiarity with the details of the governing regulations than I would have thought."

Hoping for court action

In the end, The Washington Post reported, the attorneys are hoping that federal judges will agree with their central argument: that the suspected al-Qaida terrorists and Taliban fighters being tried in a makeshift military courtroom here cannot receive due process and fair trials under the commission process.

"These cases are headed straight to federal court," said Navy Lt. Cmdr. Charles Swift, appointed by the military to represent a man who served as Osama bin Laden's personal chauffeur. "They are making this up as they go along."

The defense lawyers, most of them military officers appointed by the government, dominated the proceedings by questioning the legitimacy of the commissions, their rules and procedures, and the fitness of the men assigned to sit in judgment of their clients. They argued that Bush overstepped his authority by creating the commissions, that their clients' rights to speedy trials have been denied, and that the commissions violate the equal-protection clause of the Constitution because only non-U.S. citizens can be tried before them.

Many of the points the defense lawyers tried to make may find their way before U.S. judges because they involve constitutional questions. So far, two of the four defendants formally charged have portions of their challenges already pending in federal court. A third challenge, in the case of an accused paymaster for al-Qaida, is about to be filed in U.S. court, according to his defense lawyer, Air Force Lt. Col. Sharon Shaffer. The case of a fourth man, who admitted in court on Thursday that he is a member of al-Qaida, is on hold while lawyers try to figure out whether he can represent himself or hire an attorney from his home country of Yemen.

Under Bush's executive order creating the commissions, Altenburg must also decide on any efforts to unseat panel members on grounds of conflict of interest. Lawyers for the first two defendants — Australian David Hicks and Salim Ahmed Hamdan of Yemen — challenged the fitness of all but one of the five panel members and one alternate.

Two commissioners served military tours in Afghanistan, and defense lawyers argued that others were too closely linked to the war there, and to the Sept. 11 attacks, to be impartial.

And Hicks' lead attorney, New York civilian Joshua Dratel, previewed an additional motion to get the entire panel thrown out for its lack of legal expertise.

That argument might be a tough sell with Altenburg. He appointed all the panel members in the first place.

Additional information from The Washington Post

Copyright © 2004 The Seattle Times Company

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