Deteriorating case of defendant rights for Guantanamo detainees
A few months before his first hearing at Guantanamo Bay, Attorney James Connell took time to discuss his upcoming defence case for Ali Abdul Aziz Ali, the alleged husband of Dr Aafia Siddiqui, with Dawn.com.
Connell explained that his client, also known as Ammar al-Baluchi, was being charged as a co-conspirator to the 9/11 attacks on the World Trade Centre. The US government alleges that Baluchi assisted his uncle and the mastermind of 9/11, Khaled Sheikh Muhammad, by laundering money and providing logistical services to Al Qaeda members.
Baluchi was arrested in Karachi in 2003 and detained in a secret location by US intelligence until 2006, when he was transported to Guantanamo. At the initial hearing to determine whether he was a combatant against the US, Baluchi claimed that he often acted as a businessman providing logistical support to all kinds of individuals while living in Dubai, and that he was unaware of the militant nature of his clients.
The US government is seeking the death penalty for all six of the co-defendants in the case including Baluchi, which is one of the reasons why James Connell has been assigned to this case.
Under the Bush Administration, detainees were exclusively represented by military officers, who lacked experience in death penalty cases, leading to inadequate representation. However, Connell explained that, President Obama has required all detainees be provided a free attorney with experience in death penalty cases.
Connell was selected as one of these attorneys on the basis of his extensive nine-year experience of representing defendants facing death penalty in Virginia. During his representation of Baluchi, Connell explained, he has been working at the Office of Chief Defense Counsel – a component of the Pentagon. Despite being financed by the US government, Connell stated that “the Pentagon put no restrictions on our ability to defend our clients and we are fighting for the best interest of our clients.”
Though the detainees at Guantanamo are now afforded more adequate legal representation, Connell argues that “military tribunals are 75 per cent court, and it is the remaining 25 per cent that really matters.” Consequently, while the military commission gives the appearance of a fair trial, many of the substantive protections usually afforded to defendants to allow them to mount a proper defence have been eliminated. Which is why, Connell went onto explain, “the last 25 per cent is very important, it’s that 25 per cent that lets you get a subpoena to get a witness, or documents, or do the investigation that leads to the facts.”
He explained that trials were often slanted in favour of the prosecution because the rights of defendants were “watered down,” especially with regards to the confidentiality between lawyer and client. The government allowed defence attorneys representing Guantanamo Bay cases to communicate in person with their clients, but any written communication would be monitored by the government and phone conversations were prohibited.
The imbalance between the defence and prosecution is further typified by the difference in the ability to use and collect evidence. The military prosecutor, unlike his civilian counterpart, can use hearsay evidence, where a witness can testify to things outside their personal knowledge that were told to them. This often allows the prosecution in Guantanamo Bay to use gossip or ‘he said, she said’ evidence against defendants facing a possible death sentence for their involvement in terrorist activities.
Yet on the other hand, the government has established a rule that all statements by the defendant were presumed to be classified. This meant that the defence could not use statements by their own client without the permission of the government. The rule controverts the established legal principle that a defendant should be able to freely collect evidence pertinent to their defence, summon or subpoena witnesses, and confront their accusers at trial. Connell stated that 35 of the 37 requests for subpoenas filed by all of the defence teams have been rejected by military prosecutors without providing a justification.
Further, one of the biggest differences between a civilian trial and a military tribunal is the right to a jury trial. While civilian courts protect the right to jury trial for defendants, military commissions are exclusively composed of military judges. Connell explained that the jury is very important for two reasons- the first being that jurors serve as a “bulwark against the State,” holding the government accountable for their allegations. Secondly, the jury represents a “cross-section of the public” which ensures a diverse perspective in determining the defendant’s guilt. This diversity is lacking in military tribunals composed of three senior military officers.
Without these protections, it is difficult to assume that the proceedings at Guantanamo Bay will be fair, but Connell told Dawn.com, “It is possible to get justice through the Commission. I wouldn’t have participated in it if it was just going through the steps with no content whatsoever.”
For example, he explained that while the prosecution can limit the evidence available to the defence, he can appeal the prosecutor’s decision with the military judges.
He went onto state that the Obama Administration will not prosecute officials from the Bush Administration who tortured detainees regularly, including those involved in Baluchi’s case. This meant that “that there may never be an examination of what happened in that part of American history, but this [Baluchi’s trial] is a forum for that discussion.” The trial of Baluchi and his co-defendants may be the only forum in which the truth about the Bush Administration’s torture policies will be evaluated critically.
While some versions of the truth may be revealed through these proceedings, the government has ensured that it will control the flow of information by asserting that all pertinent documents to the defence of Guantanamo detainees are “classified.” The limitations placed on evidence collection and the obvious presumption of guilt for all defendants by military commissions will only worsen as the use of Guantanamo increases.
Rather than shutting the base down as promised, the Obama Administration has solidified the future of military commissions at Guantanamo through the recent passage of National Defense Authorization Act. Therefore, after being used by both a Democrat and Republican President, Guatanamo Bay seems to have become enshrined in American policy for good.
Hence, regardless of the outcome of the 2012 election, Guantanamo will probably continue to be used, making the work of Connell and other defence attorneys even more important. While these attorneys are left with more procedural roadblocks than protections for their clients, they serve the very important role of holding the President, CIA, and military to account for their otherwise secretive and oftentimes illegal activities.
The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.