Chief Defense Counsel of Guantánamo’s Military Commissions Calls Them a “Poisoned Chalice,” a Betrayal of the Constitution and the Law

By Andy Worthington, September 26, 2016

Here at "Close Guantánamo," as we continue to monitor the situation at Guantánamo in the dying days of the Obama presidency, we remain concerned for all the categories of men held. Of the last 61 men in the prison the statistics are as follows:

• 20 men have been approved for release.
• 23 have had their ongoing imprisonment approved by Periodic Review Boards.
• Eight are awaiting decisions by Periodic Review Boards.
• Ten are facing — or have faced — trials.

Of the men approved for release, seven have been languishing at Guantánamo since the high-level, inter-agency Guantánamo Review Task Force made decisions about what should happen to the prisoners in 2009, while the other 13 have been approved for release in the last two and a half years by the latest review process, the Periodic Review Boards (for further information, see our definitive Periodic Review Board list). All of these men should be released as soon as possible.

Of the men approved for ongoing imprisonment by the Periodic Review Boards, we are reassured that further reviews have been built into the system — administrative file reviews every six months, and full reviews every three years (although they have taken place more frequently in practice), in which the prisoners can once more speak by video-conference with the inter-agency officials deciding their fates as they did during their initial reviews. We do, however, believe that, fundamentally, men should not be held indefinitely without charge or trial and eventually be granted parole type reviews (which is what the PRBs are). If the men in question were engaged in military activity, then they should be held according to the Geneva Conventions, and if they were allegedly involved in any kind of terrorist activity, then they should be put on trial.

Of the men facing trials, the problem — largely overlooked in the mainstream media — is that the trial system at Guantánamo, the military commissions, is thoroughly dysfunctional, and incapable of delivering justice, and we believe the commissions should be scrapped, and men who can be prosecuted moved to the mainland for federal court trials.

The commissions were dragged from the history books by Dick Cheney and his closest legal adviser, David Addington, in November 2001, with the intention of providing swift trials — and, subsequently, executions — for men seized in the "war on terror," in which information derived through the use of torture could be included, and in their first incarnation they limped on, without getting anywhere near trials, until June 2006, when the Supreme Court ruled that they violated the U.S. Code of Military Justice and Geneva Conventions.

Nevertheless, Congress also immediately resuscitated them, and, after a break when he took office in 2009, President Obama again revived them in 2009, although as experts noted (see here and here) this was unwise, because the war crimes in question being tried in the commissions — and, particularly, the most general charge, of providing material support for terrorism — had been invented as war crimes by Congress and would not survive on appeal.

That was indeed what happened, and in 2012 and 2013 two rulings in the appeals court in Washington, D.C. demolished the credibility of the commissions, dismissing two of the handful of convictions secured in the ailing system, and ensuring that most of the men recommended for prosecution by the task force (36 men in total) would not be prosecuted, but would, instead, be made eligible for Periodic Review Boards.

Of the ten men left in the commissions system, just seven are involved in pre-trial hearings — five men accused of involvement in the 9/11 attacks, and two others — while two have accepted plea deals, and one was convicted under George W. Bush — although he is also one of the men whose convictions have collapsed under subsequently judicial scrutiny.

Unfortunately, for anyone in search of justice, the commissions are caught in a seemingly endless deadlock, in which, on the one hand, the defense teams insist, as they should, that information about the men’s torture in CIA "black sites" must be revealed, while, on the other, prosecutors are doing all they can to continue hiding evidence of torture — and all this, of course, continues even though, in December 2014, the executive summary of the Senate Intelligence Committee’s report into the CIA’s torture program was published, which confirmed the extent of the men’s torture, its brutality and its uselessness, in what should have been a definitively authoritative manner.

Nevertheless, the commissions limp on, even though trials are not envisaged as taking place before 2020 at the earliest.

Moreover, critics continue to assail the commissions’ legitimacy from within, as has happened throughout their history. Seven prosecutors and one chief prosecutor have all resigned since the commissions were first revived — including Stuart Couch, Darrel Vandeveld and the former chief prosecutor Morris Davis — while recently the latest Chief Defense Counsel, Brig. Gen. John G. Baker, delivered a speech to a national security conference at Georgetown University, which was a withering putdown of the failures of the system — despite the best efforts of the defense teams — to deliver anything resembling justice.

I’m posting the text of Brig. Gen. Baker’s speech below, and I do hope you have time to read it, and to share it if you find it useful. In a key passage, he noted that, "Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay." He also spoke about the difficulties involved in getting to Guantánamo and communicating with the prisoners, and also talked about how they "have a tragic history of being subjected to brutal torture at the hands of the U.S. Government," and how "[t]he impact of past torture continues to permeate every aspect of the attorney-client relationship," adding that "[m]any detainees continue to lack the necessary medical care appropriate for lengthy periods of abuse."

Brig. Gen. Baker also ran though a shameful list of the ways in which, as he put it, "the U.S. Government has repeatedly taken steps that frustrate meaningful attorney-client relationships, both inside and outside of the courtroom," and spoke at length about how he uses the acronym "DID" to highlight the biggest problems facing the defence teams — problems with the first "D" for discovery, "I" for intrusion, and the second "D" for an array of problems associated with death penalty cases.

In a key passage towards the end of his speech, Brig. Gen. Baker gave the following relying cry for everyone who seeks the closure of Guantánamo and the delivery of justice to the men still held, which I thoroughly endorse: "Despite its notorious reputation, Guantánamo, and particularly the military commissions, have largely disappeared from the media landscape as a topic. This should change. The topic of human rights and America’s commitment to its own Constitution should be on the front-burner of public debate. Tell your colleagues about the failing military commissions. Tell them how the United States created a substandard system of justice, but only for non-citizens. Tell them about the government’s unconscionable discovery practices. Tell your friends about how the government is trying to conceal evidence of torture or how they are destroying exculpatory evidence."

Keynote Speech of Brigadier General John G. Baker, Chief Defense Counsel of the Military Commissions Defense Organization, at Georgetown University's NATSECDEF conference on September 14, 2016

Good afternoon. I’d like to thank Georgetown University for hosting this event and the NATSECDEF Conference for inviting me to share my thoughts on the current state of the military commissions. I am especially thankful to the personnel at Georgetown and my own organization who made it possible for me to speak to you via video-teleconference. I apologize for not being there in person, but I’m delighted to speak to you live from Camp Justice in Guantánamo Bay, Cuba, where I am here to observe post-trial proceedings in the military commission for Majid Khan.

I head an organization known as the Military Commissions Defense Organization, or the MCDO as we call it. The MCDO is an extremely diverse organization, employing approximately 200 personnel drawn from all four military branches, civilian government employees, contractors, and pro bono attorneys. Our mission statement explains that the MCDO "provides ethical, zealous, independent, client-based defense services under the Military Commissions Act in order to defend the rule of law and maintain public confidence in the nation’s commitment to equal justice under the law." Our work challenging the current Commissions process, which is flawed in both design and execution, is vital to ensuring current and future law of war prosecutions are seen as credible by the American public and the international community.

Before I begin, I would like to take a moment to express how proud I am to lead this organization and to recognize the phenomenal work done by the people I lead. I have been the Chief Defense Counsel for the Military Commissions Defense Organization for a little over a year, and daily I am reminded of the significant sacrifices made by our members — both military and civilian. Our attorneys, paralegals, investigators, security officers, analysts, interpreters, information technology experts, and operations and administrative support personnel, all work long hours, spend weeks at a time away from their families, and deal with daily frustrations and indignities, all to further the respect of human rights and to uphold the rule of law in our country. They do this important work because most of them have taken an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic." That is exactly what they do every day. I am proud of each and every one of them and every American and member of the international community should be proud of them as well.

I was asked to talk today about the current state of the military commissions at Guantánamo Bay. Put simply, the military commissions in their current state are a farce or as Rick Kammen — lead counsel for Mr. al-Nashiri — stated on the record last week, these Commissions are "hopelessly flawed." Instead of being a beacon for the rule of law, the Guantánamo Bay military commissions have been characterized by delay, government misconduct and incompetence, and even more delay. Only two cases that were not guilty pleas have ever been brought to trial. The guilty verdict in one of those two cases was overturned on appeal in its entirety. The other had two of the three adjudged convictions overturned, and the appeal is still pending on the remaining charge. Six other cases have gone to trial through guilty pleas. Two had their pleas overturned post-trial due to legal errors. One still has an appeal still pending, and two are still awaiting sentencing — one sentencing hearing is supposed to be held in 2017 and the other won’t be held until 2019. This is not a record of which the U.S. Government should be proud.

In addition to the two cases that are awaiting sentencing, my personnel currently defend three cases which are in the pretrial phase. One of those cases, which has five defendants, alleges conspiracy to attack the World Trade Center and Pentagon on September 11, 2001. Prosecutors are seeking the death penalty for all five. Another case, also a death penalty case, alleges the accused conspired to attack the American warship USS Cole in [the] Gulf of Aden in 2000. The third case alleges the accused to be a senior member of al Qaeda who attacked U.S. personnel in Afghanistan over a five year period.

The September 11 prosecution is by any objective measure the largest criminal case in American history. The charge sheet in the case alone alleges almost 3000 victims and criminal acts in 14 different countries. According to the FBI’s website, at least 30 of its foreign offices were involved in the investigation using over 4,000 special agents and 3,000 professional employees responding to more than 500,000 investigative leads, conducting more than 167,000 interviews and collecting more than 150,000 pieces of evidence. The case of the accused USS Cole bomber is only marginally less complicated. Same for the prosecution of Nashwan al-Tamir [Abd al Hadi al Iraqi], the accused al Qaeda leader in Afghanistan.

The legal [issues] involved in these cases are complex, cutting edge, and often a case of first impression for the counsel and the military judge. In addition to their size and scope, almost nothing about defending these cases is normal, however you define normal. Our clients are imprisoned on a remote military base on a country historically hostile to the United States. The logistics of the commissions make establishing effective and meaningful attorney-client communications far more difficult than it should be. Telephone and electronic communications with our clients is not allowed — so the defense teams are required to fly down to GTMO regularly — often to resolve a routine matter that we would normally take care of in an hour or so here in the States. Because flights are not frequent, even the most routine client visit takes an entire week to accomplish.

Just getting to the clients is only the first part of the struggle. In my opinion, the biggest challenge my defense teams face is forming and maintaining an effective attorney-client relationship. In addition to language, cultural, and religious barriers, MCDO clients — with few exceptions — have a tragic history of being subjected to brutal torture at the hands of the U.S. Government.

The impact of past torture continues to permeate every aspect of the attorney-client relationship. Many detainees continue to lack the necessary medical care appropriate for lengthy periods of abuse. While defense teams should be devoting their efforts to case building and research, they unfortunately spend a disproportionate amount of time on "care and feeding" of the client. Under these difficult conditions — not to mention the obvious inherent cultural and language barriers — our defense teams have done a remarkable job building rapport and gaining clients’ trust.

In the meantime, despite the best efforts of our attorneys to win the trust of their clients, the U.S. Government has repeatedly taken steps that frustrate meaningful attorney-client relationships, both inside and outside of the courtroom.

In the space of three months beginning in January 2013, the 9/11 defense teams discovered that a third party had the ability to shut down live courtroom proceedings without the knowledge or assent of the judge; that a government entity had the ability to listen to courtroom conversations through the microphones placed on defense tables; and what had previously been believed to be smoke detectors on the ceiling of attorney-client meeting rooms were, in reality, listening devices. During a hearing addressing these issues, the cells of all of the accused were searched and privileged attorney-client mail was seized. In 2014, it was learned that the FBI had convinced a 9/11 defense team member to become a confidential informant as part of a criminal investigation of one of the other team members. During a February 2015 hearing, one of the 9/11 accused announced that he recognized the court interpreter sitting at his defense table from one of the black sites where he was interrogated and tortured. These events led to well over a year’s delay in the proceedings while hearings were cancelled and court-ordered investigations were conducted. Most recently, the government has been baiting one of the accused to fire his defense team and go pro se. To say the very least, military commissions will have no legitimacy as a system of criminal justice until this kind of government interference ends.

So how is that it is September 2016 and we are nowhere near trial? In many respects, what happened today in court is symbolic of how badly the commissions are going. Majid Khan pled guilty in 2012 and, as incentive to cooperate with the prosecution, agreed to delay his sentencing hearing until this year. Today, they pushed that sentencing hearing back for three more years.

Members of the public, including the victim family members, have often asked why this case is taking so long to get to trial. Despite occasional assertions to the contrary from members of the prosecution, the delays in these cases are almost all caused by decisions made by government actors. To help explain this delay, I’ve come up with acronym DID — D-I-D — for the three primary pieces for the delay.

The first D stands for Discovery. The delay is caused by the government's discovery practices, which are unlike any undertaken by any prosecutor in any American court system. Between the 9/11 and Nashiri cases, the government has turned over 600,000 pages of unclassified discovery. They have also produced 183,000 gigabytes of electronic discovery. James Connell (lead counsel for Ammar al Baluchi) tells me that this is 37 times all the data contained in Wikipedia. So with production of this much discovery, you’d think that there would be no discovery issues, but holy smokes, are there discovery issues in these cases. Here we are 15 years after 9/11 — or more generously, 4 years after the accused were arraigned — and the prosecution has not completed its discovery obligations. The redactions and deletions in what they have turned over will lead to what I predict is years of additional litigation.

Most of the evidence in military commissions cases relating to the clients’ torture is classified at the highest levels. Issues relating to classification have consistently impeded the defense team’s abilities to do their jobs. New hires without security clearances cannot meet the client or participate in important case preparation until they have undergone a lengthy background investigation process that literally takes a year or more to complete.

Even after obtaining necessary clearances, defense counsel operate in the dark due to a lack of adequate classification guidance. Defense counsel are legally bound to handle classified information appropriately, yet, for seven years — since charges were originally brought in the 9/11 case — the government has refused to provide the formal classification guidance required by Executive Order. The limited guidance that has been received has been inadequate, resulting in "spills" of classified information that cause significant delay, including the temporary seizure of computers, while security personnel conduct investigations. Lack of classification guidance also has a chilling effect on defense teams, who cannot afford to put their security clearances at risk.

More disturbingly, the classified evidence rules have been interpreted to allow the prosecution to secretly obtain permission from the military judge to secretly destroy critical exculpatory evidence. Military commissions defense attorneys will continue to fight to prevent prosecutors from withholding critical evidence, or worse, destroying evidence helpful to the defense in the name of "national security."

So, where are we on discovery?

Last Friday, BG Martins explained the state of play of the government’s discovery practice; he has "tempered optimism" that it will be completed on 30 Sept. BG Martins has had a team of people working "seven days a week" since June 2014 to comply with the judge’s discovery order. They have reviewed millions of pages of documents — to include the full SSCI report. 18 months, 7 days a week, millions of pages — and what the defense is supposed to get at the end of all that work is a couple of thousands of pages.

When will the defense get those couple of thousand pages? Who knows. The military judge needs to review most of this to determine if the government has provided an adequate substitute or summary for the classified evidence. We know from the judge on the 9/11 cases that he has determined in almost all instances that the government has not provided an adequate summary and has sent the discovery he has reviewed back for more work. When our defense teams finally do get this evidence from the judge, there is going to be significant litigation to follow regarding the government’s discovery practices.

So back to the acronym DID — I just discussed the first D — Discovery.

The I in DID stands for intrusion. I previously explained how the Government has consistently intruded into the defense attorneys’ abilities to do their jobs. Many of the case delays can be traced back to governmental intrusions into the defense function — from infiltrating a defense team to attempting to bait an accused to fire all his attorneys.

Finally — the last D — the death penalty, which causes its own delay. Death penalty cases have a different standard for criminal defense attorneys to meet to ensure their clients have effective assistance of counsel. Accused facing the death penalty are required to be represented by counsel learned in the field of capital litigation with significant experience trying death penalty cases. Each accused in the military commissions currently has one such attorney, but cases of this size, scope, and complexity require more than that. My attempts to hire additional death penalty counsel, investigators, intel analysts, and other critical resources have been continuously blocked by the Convening Authority, who refuses through his action — and at times, inaction — to provide sufficient personnel and funding for a constitutionally adequate defense. This has remained the case even though Congress specifically recognized the problem and emphasized the need for adequate defense resourcing when they passed the Military Commissions Act. Predictably, burnout has been a significant problem as defense teams have done more with less as their requests for critical resources often are ignored. If the defense teams continue to be under-resourced, the result will be more delays and, down the line, more challenges to the fundamental fairness of the proceedings.

As you listen to this today, you may wonder what you can do. Despite its notorious reputation, Guantánamo, and particularly the military commissions, have largely disappeared from the media landscape as a topic. This should change. The topic of human rights and America’s commitment to its own Constitution should be on the front-burner of public debate. Tell your colleagues about the failing military commissions. Tell them how the United States created a substandard system of justice, but only for non-citizens. Tell them about the government’s unconscionable discovery practices. Tell your friends about how the government is trying to conceal evidence of torture or how they are destroying exculpatory evidence. Our legal defense teams are doing great work bringing some of these issues to light, but they need help.

After the passage of the Military Commissions Act, a former Chief Prosecutor for Military Commissions stated his goal was for Guantánamo military commissions to be remembered by future generations in the same favorable light the Nuremberg Trials are held by members of this Generation. The U.S. Government unfortunately has failed and continues to fail this test. Future generations will look back at these proceedings as a missed opportunity for America to show the world its commitment to justice, human rights, and the rule of law.

If the U.S. Government still intends to use Nuremberg as its guide, they would be wise to listen to the chief prosecutor at Nuremberg, Justice Robert Jackson, who recognized the danger of powerful nations unilaterally dispensing justice onto a purported enemy. Justice Jackson said in his opening argument at Nuremberg: "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well."

Instead of respecting the Constitution and ensuring equal protection under the law, the U.S. Government is choosing to drink from a poisoned chalice.

If our government wants the most important criminal cases in American history to be tried by military commission, it is essential that the proceedings live up to the highest standards of American justice. They have not. Instead, they leave behind a legacy of uncertainty, government misconduct, and torture. This is a gross injustice being done to the individuals charged in the system, but it is also more than that — it is, as Justice Jackson recognized, a matter of national security and integrity as well.

I am proud of the oath I have taken to "support and defend the Constitution of the United States against all enemies, foreign and domestic," and so are the other members of this organization. Our nation may once again decide to use military commissions in a future armed conflict. The efforts of our defense teams to change the "poisoned chalice" of Guantánamo into legitimate and credible proceedings lays the groundwork for a system that fully comports with the rule of law and has the respect of the international community. In defending the rule of law by fighting for their clients, MCDO attorneys are defending the rule of law on behalf of us all. I could not be more grateful and proud to lead this organization.