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A View From Gitmo: Proceedings lack transparency available in US courts

June 18, 2014
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gitmo-riley sigGuantanamo Bay, Cuba, has finally been in the news again recently, but Americans have been in the dark too long with little or no information about the prosecution of alleged terrorists at the naval base. I recently had the privilege of serving as an observer for the Indiana University Robert H. McKinney School of Law Military Commission Observer Program and traveled to Gitmo from April 21 to 28 to witness the pretrial motions hearings in U.S. v. al-Nashiri. Abd al-Rahim al-Nashiri is accused of masterminding the bombing of the USS Cole in 2000.

This is the first article of a three-part series that I intend to write about legal procedures that are in contravention of the American court system. By creating the Military Commission Office in 2009, Congress has created a new paradigm like no other. But as any good appellate lawyer, I would first like to frame the issues and comment on how my experience has influenced my thoughts regarding the exchange of Sgt. Bowe Bergdahl for five Afghans imprisoned at Guantanamo Bay.

Guantanamo, at its core, remains a lawless place and at odds with the American value of transparency in its courts. Many dozens of inmates, not accused of any crime and, in fact, cleared for release still remain at Gitmo. Their release has nothing to do with legalities or justice, but just depends on the luck of the draw. There has never been an inmate repatriated to Yemen, the nationality of al-Nashiri. In fact, even if he is found not guilty (an unlikely prospect) he still will not be freed or allowed to leave Gitmo. He is referred to as a “forever prisoner.” So, the exchange of Bergdahl and the prisoners that were released is tied less to court decisions than to the politics of the time.

My first observation has only been reinforced these last few weeks. The hearings that I observed leading up to trial amount to political theater. The prisoner exchanges, which should continue, seem like a show. Legal principles are being re-interpreted with an eye toward satisfying the political wind of the times.

So, the first issue we should consider before we debate whether the transfer of five Afghans was lawful is this: the American public should ask themselves whether the detention of these prisoners is lawful. Many are held without charges being filed, there are few or no protections guaranteed by the Geneva Conventions as was true in prior wars, and the hearings that I observed did not follow constitutional principles that guarantee a fair trial.

Twenty prisoners were first taken to Guantanamo Bay to inaugurate Camp X-Ray Jan. 11, 2002. It is hard to get an accurate account of how many detainees are in Gitmo, but on April 15, 2014, a total of 2,268 remained at the camp, up from 2,127 as of Nov. 6, 2013 – before the prison camp imposed an information blackout. The cost to house one detainee a year in July 2011 was estimated to be $800,000 a year. By July 2013, it was estimated to cost $2.7 million per prisoner based on Defense Department figures. Most of the reporting coming out of Gitmo is from Carol Rosenberg at The Miami Herald, who has an up-to-date twitter account that I recommend, @carolrosenberg. Also, I encourage you to go to the IU McKinney Law School website, mckinneylaw.iu.edu, where there is a link to the MCOP program and its blog.

Al-Nashiri was arrested in 2002, and he is facing the death penalty as the alleged mastermind of the October 2000 suicide bombing of the USS Cole that killed 17 U.S. sailors. Even though he was arrested in 2002, he did not arrive at Gitmo until September 2006, as he was held in various “black sites” that the CIA operated.

It has been reported by Rosenberg and Adam Goldman at The Washington Post that three European countries hosted CIA “black sites” – Lithuania, Poland and Romania. Al-Nashiri was at the Polish site from December 2002 to September 2003, and then moved to other sites. The government has admitted that he was waterboarded many times, threatened to be killed with a power tool, threatened that his mother would be raped, and he was sexually abused. These are the tortures that the government admits.

One of the most contentious motions being considered in the al-Nashiri hearings was first argued in February, and on April 14, Judge James Pohl granted the defense attorneys’ limited discovery about what had happened to the defendant while at a black site. He ordered the CIA to give defense lawyers details – names, dates and places – of its secret overseas detention and interrogation of al-Nashiri.

When I was there in April, the government kept referring back to Appellant’s Exhibit 120 and wanted the court to rescind the part of its order that would allow the defense to have that information. In fact, the government’s motion to reconsider was the main issue argued at the recent June hearings.

The government has been giving the defense either redacted versions of its discovery or summaries. But since the government is in charge of discovery, they get to decide what is appropriate for the defense. Without Rick Kammen’s and other defense members’ relentless arguments about what they need in order to conduct a death penalty trial, there would be no need for a trial of any kind. Keep in mind that all the attorneys have top secret classification so they can read those documents. But their client does not have top secret classification so they cannot discuss those documents with their client.

While on a break at Gitmo, a family member of a serviceman killed in the bombing said loudly and in my presence that Kammen should just get on with it because all “we want to do is kill him (al-Nashiri.)” I understand that this is a war like no other, but we shouldn’t lose sight of our values of fairness and belief in the rule of law.•

__________

Patricia Riley, a judge on the Indiana Court of Appeals, is participating in the Indiana University Robert H. McKinney School of Law Military Commission Observer Program. The opinions expressed are those of the author.

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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