Guantanamo - On the edge of my chair, I sat and watched as the alleged masterminds behind the 9/11 attacks were ushered into the courtroom one by one for their arraignment. After almost ten years of detention at CIA dark sites and at Guantanamo Bay, Cuba, Khalid Sheik Mohammed and four alleged co-conspirators were brought before a military commission to be tried on capital charges.
Along with several other non-governmental organizations flown in to observe the hearing, family members of 9/11 victims and members of the press, I observed the commission from Courtroom Two at Camp Justice. The anticipation was that it would be a quick and dirty arraignment, as arraignments tend to be largely procedural. But it went from chaotic to worse over thirteen long hours. It was anything but what I had expected. But that's just it: what exactly was I expecting?
With soundproof glass and a 40-second audio delay standing between me and the accused, the lens through which I observed the arraignment was a foggy one at best. The commission courtroom was bedecked with freshly pressed military uniforms and suits of counsel and guards; the stage was set for an orderly and regimented hearing. The proceedings were, according to the commission judge, Army Col. James L. Pohl, to follow a script which had been rewritten just the day prior and, thus, had not yet been translated into Arabic for the accused. This resulted in a flurry of due process and procedural issues regarding translation and whether the accused were even listening.
Every effort was made to thwart Judge Pohl's attempts to proceed with the arraignment as scripted. Delays and interruptions occurred for paper airplanes, unscheduled prayer, random outbursts, translator issues, clothing complaints and continued motions and applications to the court, all of which visibly undermined the judge's control and authority in the hearing. Judge Pohl deferred to counsel and heard the arguments, but ultimately shot down every request until the arraignment was over.
Judge Pohl made clear during the course of the hearing that he was a "process guy," that "trials are processes run by certain rules" and that he would "not be taking things out of order," often referring to the "script" that had been prepared in advance of the arraignment.
The accused refused to participate in this "process" and took no acknowledgment of the judge or the court proceedings. Rather, Judge Pohl took their silence in the form of whatever presumption he saw fit, depending on the question. Whether the accused were not participating to add to the spectacle of their military commission or because they simply refused to be a part of the process due to the circumstances under which they've lived for the past years, remained unclear.
Counsel claimed their clients had not had the opportunity to create a meaningful attorney-client relationship and, thus, how could counsel be accepted? Indeed, how is a privileged relationship possible with monitored conversations, reviewed legal mail and no phone contact? More importantly, how could the accused accept the appointed counsel if he had not formed the relationship necessary to make such a decision?
In one of the many Catch-22s that plagued the day, Judge Pohl refused to entertain any motions, particularly the motion claiming that the accused and counsel had not had the opportunity to develop a relationship. Despite the fact that this raises very serious due process issues which include the role of the United States Constitution, if any, in these proceedings, Judge Pohl insisted that the arraignment proceed as scripted, refusing to entertain motions until after counsel had been appointed - for in his "process" counsel had no standing to argue motions until the accused had accepted the appointed counsel.
Navy Cmdr. Walter B. Ruiz, the military lawyer appearing on behalf of Mustafa Ahmad al-Hawsawi - accused of aiding the 9/11 hijackers with money, credit cards and clothes - suggested the proper remedy was a federal court procedure which would allow the judge to hear the motion for defective referral prior to appointment of counsel and arraignment. The procedure, often utilized in jurisdictional matters and called a "limited appearance," would allow the accused's choice of counsel to appear for the limited purpose of considering the motion. The proposal fell on deaf ears; Judge Pohl was adamant that it was impossible for him to get to the motions until the election of counsel had been completed and that this was within his discretion.
The lawyers, in turn, were required to recite their qualifications to represent the accused and to take an oath. Defense counsel, both military and civilian, balked at the terms of engagement and used the occasion to point out deficiencies in the attorney-client relationship and the imposition it has placed on their respective bar licenses, arguing that their positions and their duties had been compromised by the conditions of their clients' confinement, the breach of attorney-client privilege and the resultant inability to communicate with their clients. But Judge Pohl would have none of it, and the script dictated otherwise.
Upon taking his oath, Air Force Capt. Michael Schwartz, attorney for Walid Bin Attash, stated that, "given the current resources, I do not feel qualified." Judge Pohl responded by asking him to then withdraw as counsel or file for the appropriate relief. Also defending Bin Attash, civilian attorney Cheryl Bormann, dressed in Muslim garb in deference to her client's religious beliefs, warranted that she would "do my very best given the restraints placed on me." It was clear that counsel felt uncomfortable accepting the required oath.
Ali Abdul Aziz Ali's (aka Ammar al Baluchi) civilian attorney, James Connell, stated that Rule 502 requires actual and meaningful representation of the accused, including safeguarding of secrets and, "I might be disqualified by abiding by the 12/27/2011 order of JTF [joint task force] Colonel Caldwell" - as it creates a situation in which client's communications and confidences are compromised. He then requested that the question of his qualifications be deferred until after a hearing was had on the motion for defective referral, as he felt "under the current conditions, I cannot swear to such an oath," but that he was willing to do his best. Judge Pohl said that he could not appear as "unsworn counsel" as it was akin to being "pregnant" - you either are, or you aren't.
The fact that counsel was required to be "accepted" as counsel prior to the argument of motions raises very serious due process concerns. For how can you agree that your attorney is acceptable if you have not yet had the opportunity to meaningfully meet with him or her?
As the day progressed and the drama unfolded, I began to understand that military commissions were created as an accommodation intending to serve some fictitious justice. With New York City unwilling to accommodate trying the accused in federal court and Congress acting to block trials of detainees within the US, some other type of "justice" had to be created, developed, invented even, to serve as a judicial process - due or otherwise.
While Judge Pohl appeared to have used extreme deference to the accused, it was perceived by some as a show. And, ultimately, perhaps the fact that the proceedings were scripted is quite fitting, as it felt more like an exhibition rather than an arraignment. The actors talked out of turn, the costumes were not quite right and the judge was being ignored. As an attorney, what I perceived in Judge Pohl's courtroom during the arraignment was not a court proceeding with which I could identify. But perhaps this is the result military commissions are intended to produce? Perhaps this is all meant to give the perception of justice under the United States Constitution under the guise of some other system of (un)justness?
It is unclear whether the Marbury v. Madison of military commissions is unfolding before our eyes, or if this will become a historical blemish on our system of justice. Either way, my sense of fairness and balance has been thrown at this critical and pivotal moment in history. This alternative, born of seeming necessity, makes many of us uncomfortable and uneasy, but indeed we are resistant for a reason - we've had a successful federal judicial system in place for centuries and chose not to use it in this instance. Whether this is the most effective way to handle "justice" for the detainees remaining at Guantanamo Bay remains to be seen. But at the end of the day, will this merely be looked upon as a spectacle?