Benjamin Wittes is correct in concluding that I (and Human Rights Watch) share his desire to see fair trials for Guantanamo detainees. My criticisms, however, were not directed at the conduct of the military judge or at the attorneys who participated in the Nashiri military commission proceedings. Rather, my aim was to point out that, contrary to many public pronouncements made about the military commissions, they do not provide the same procedural protections to defendants as do federal court trials. Those differences were on display at Guantanamo last week.
1) My concern with the differences in physical layout and access to the courthouse is that these limit public scrutiny of the proceedings. Access to military commissions via Closed Circuit TV (CCTV) is a red herring. Those watching via CCTV do not experience the trial the way they would if they walked into federal court to observe it (as many members of the public did for the Ghailani trial in New York). Trial participants--judge, jury, attorneys and defendant--should have exposure to the public as a constant reminder that what they do is part of the broader US legal process. Furthermore, those watching remotely do not have the same access to individuals involved in the proceedings as do those present at Guantanamo. The press, viewing by CCTV for example, cannot ask questions of attorneys at press conferences after each day’s events where a summary and commentary on what occurred are provided. They may submit questions well in advance of the conference but not afterwards. And while CCTV is an improvement in transparency, it is also important to note that the trials of the last three detainees prosecuted by the Obama administration in Guantanamo were not broadcast over CCTV to the press or public (nor were those under the Bush administration).
2) There are no real speedy trial rights for detainees held at Guantanamo. Citation to the Ghailani case proves this point. Ghailani spent four years in CIA custody before being transferred to Guantanamo in 2006 and then to federal court in 2009. The judge in his case ruled that the time Ghailani spent in CIA custody and at Guantanamo did not count for speedy trial purposes unlike in normal federal court proceedings where time spent in government custody would count. Human Rights Watch does not “urge more trials in federal court featuring such delays.” If other detainees are transferred from Guantanamo to federal court, they may regrettably face a situation similar to Ghailani’s, whose pretrial time in US custody was not considered a violation of speedy trial rights by the district judge. The fact that the federal court system bent to accommodate the government’s previous illegal conduct, however, does not suggest that the remedy is trials that are even less fair in a military commission system. The point is that civilian law enforcement, including civilian pre-trial detention and trials in federal court, protects the rights of defendants (those guilty and innocent) in a way that military detention and trial by military commission does not.
3) The interference with attorney-client privilege at issue in Nashiri’s trial does not mirror practice in federal cases. It is true that federal court Special Administrative Measures (SAMs) can be imposed on certain defendants, but they must be justified by a substantial risk that a prisoner's communications could result in death or serious bodily injury to others. In addition, for SAMs to infringe upon the attorney-client privilege there must be a showing that “reasonable suspicion exists to believe that a particular inmate may use communications with attorneys or their agents to further or facilitate acts of terrorism.” No such showing of reasonable suspicion was made in relation to Nashiri prior to restrictions being imposed on his communications. In fact, the prosecution admitted that neither Nashiri nor his attorneys breached rules relating to legal mail before JTF-GTMO imposed its order. SAMs may not be imposed on a federal court defendant without any basis. Procedures used at Guantanamo for military commissions are not so constrained.
4) As to ex parte communications regarding resources, again, the rules are different in a way that can result in great prejudice to the defense. In federal court it is routine practice for the defense to submit its request for resources for investigation and experts ex parte so that it does not have to reveal theories of its case to the prosecution. In the military commissions, this is not the case. It is commendable that the prosecution joined the defense motion, and the judge appears to sympathize with the position of the parties. Yet, the result already differs from federal court procedure. The Nashiri defense team did have to reveal some information to the prosecution when requesting resources, and as indicated by previous defense communications with the Convening Authority (CA), will likely have to reveal more. The defense has tried to get the CA to agree to accept their ex parte communication on the matter numerous times already and each time, in the words of Nashiri’s attorney, the answer has been, “not just ‘no’ but ‘hell no.’” The judge said he may agree to intervene on the defense team’s behalf with the CA if it continues to insist that the defense cannot submit certain parts of its request revealing theories of the case ex parte. But this was the second time the defense had raised the issue and the judge still did not provide for that remedy.
5) In the Nashiri military commissions trial, the defense submitted a motion asking for the judge to put a stop to the reading of email, since it all travels through the Defense Department network in Guantanamo. Again, this issue would not arise in federal court because defense attorneys are not forced to communicate with their clients through a DOD system that is regularly monitored. Similarly, the remedy provided by the military commission judge would never occur in the federal court system. As a result of the ruling, in order to avoid monitoring at Guantanamo, both members of the defense team must create a document for every communication, encrypt it, call the recipient and provide them with the code for opening the document, and then send it as an attachment over email. Someone responding must go through the same procedure--even for simple “yes” or “no” communication--because text in the body of an email cannot be encrypted. This type of restriction on attorney-client communication would not occur in federal court and is quite possibly unworkable at Guantanamo.
6) The Nashiri trial highlights differences between the two systems in the ability of the defense to challenge classified summaries: In federal court, attorneys can use a motion to reconsider to challenge a classified summary; in the military commissions, attorneys cannot.
7) As to the trial date, put simply, such a short timeline would not be proposed in federal court. Realistic motion schedules, which would stop the speedy trial clock and provide an opportunity to respond, would be proposed. In the Nashiri case, even if the defense waived speedy trial rights, the prosecution proposed a written litigation schedule whereby the defense would have just two weeks to respond to the volume of documents the prosecution said it would provide and if speedy trial rights were not waived, three days. The defense asked for between ten months and two years, depending upon access to resources and information, arguing they had to translate many of the documents, submit them to Nashiri for review, and conduct investigations related to the content. Such timelines must also be viewed in light of the fact that the defense must prepare to mount a mitigation case about the appropriateness of the death penalty, not just a case about Nashiri’s guilt or innocence. Despite this, the prosecution still opposed the date suggested by the judge that gave the defense roughly three months to review and respond by motion before the next court hearing in April. The government has been preparing a case against Nashiri for nine years, yet considered three months too long to permit the defense to review disclosures.
8) The admissibility of hearsay in military commissions but not in federal court is a difference between the two systems that has had and will continue to have an enormous impact on the ability of defendants to challenge evidence against them.
While the military commission rules require the military judge to take into account all circumstances surrounding a hearsay statement, without the witness present, or perhaps even the people who took the witness' statement, such an assessment may be essentially blind. Thus, evidence obtained by torture might be admitted, perhaps without the knowledge of the proponents of the evidence. It is important to remember that Nashiri was tortured by the US government, the same entity that is now prosecuting him.
The “voluntariness” test does not apply to statements by someone other than the accused (for example, another detainee held by the CIA). Such statements (barred if obtained by torture or cruel treatment, but potentially admissible if produced by coercion), can be admitted if the military judge finds them reliable, of sufficient probative value, and the interests of justice would be served. No voluntariness standard is applied.
And "derivative" evidence--evidence derived from a statement by the accused produced by torture or other cruel, inhuman, or degrading treatment--can be admitted if the military judge determines doing so is in the interest of justice.
The bottom line: evidence of the type known to be unreliable (certain coerced evidence and evidence derived from torture) and having an important impact on defendants’ rights can be admitted in a military commission but not in federal court.