James Connell, attorney for Ammar al-Baluchi, a Guantanamo Bay detainee, recently returned from a pre-trial hearing for his client and agreed to discuss the development of his case with Dawn. When asked whether the substantive issues of the case had been decided yet, Connell responded that the trial was still years away and that “we don’t even have the procedural framework, much less a decision on what the rules are going to be and how to apply them.”
However, the highest levels of the US military commissions have made some binding conclusions in the past, which Connell describes as “horrifying.” He explained that the commissions determined that the Equal Protection Clause of the US Constitution does not apply to Guantanamo Bay detainees. Connell explained that the equal protection clause “means that everyone gets treated equally,” and after its suspension, the US government “could make a law that only Muslims be held in Guantanamo Bay.” He concludes that “if they are allowed to discriminate on the basis of race, religion or national origin, there is no limit to the damage they can do.”
However, Connell said that the most appalling thing to come out of the tribunals last week was that “the government claimed that it owns and controls the observations and experiences of Mr. al-Baluchi and others with respect to what happened to them in detention.” He went onto say that this violates every principle of international law and is akin to slavery, because “rather than owning someone’s body, the government owns someone’s mind.”
All of these conclusions and arguments have manifested in the dehumanisation of the detainees at Guantanamo Bay. However, Connell argues that it is important for the public to be aware that the detainees at Guantanamo “are people who have an identity… [and] things they care about, people they love.” As such, he was pleased when the judge allowed Guantanamo Bay suspects the ability to choose their own court attire, within reason. He explained that the ability to wear a shalwar kameez, “allows my client to assert his identity in a way that the government has been trying to take away.”
Along this line, Connell and his fellow defense attorneys have tried to assert the right of their clients to tell their side of the story. This especially includes the right to detail the torture that detainees were subject to after being detained. The US government has rejected discussions of torture in the court proceedings, deeming them classified, which Connell concludes is a deliberate attempt to “cover-up evidence of torture.”
He explains that the government has made the process of classification ambiguous as a strategy to stifle the defense’s ability to reveal mistreatment that their clients suffered during detention. The government has imposed a far-reaching presumptive classification rule which states that any information derived from a detainee is presumed to be classified and cannot be investigated or discussed by their attorney. This includes allegations that the confessions relied upon by the prosecution were procured through illegal torture techniques, which the defense can neither raise in front of the judge nor verify on his/her own. Further, if the detainee gives his attorney a list of people that can prove his innocence, the list is presumed to be classified and cannot be verified by the defense attorney in order to fully represent their client.
In furtherance of its cover-up, the government’s prosecutor scoffed at Connell for raising the issue of torture, rhetorically asking whether the government should dismiss all charges against suspects for their despicable terrorist acts ‘just’ because they were tortured. Connell states that this is a reductionist argument and that the prosecution was “trying to take a complicated argument and reduce it to its simplest most mockable form.” In contradistinction to the government’s argument, Connell argues that torture is important through every stage of the trial from the public’s perception of the suspects to the truthfulness of ill-gotten evidence used against them.
When asked about the growing public perception in the US that terrorists can be tortured and are not be entitled to constitutional rights due to the heinous nature of their crimes, Connell disagreed. He argued that “once a tool becomes available to the government, once limits are crossed, the government feels that it has that tool to use it the next time…right now its Muslims they are after, but in World War II it was Japanese they were after, in the 19th Century it was Chinese and before that it was Native Americans.” All of these prior injustices were supported by the public at the time but were later recognised as dark spots in America’s history, and the belief that terrorists don’t deserve rights falls into this discriminatory tradition.
He went onto explain that unlike his experience as a defense attorney in American civil courts, “where you go in with 200 years of precedent, understanding what the rules are and always fighting on the fringes,” military tribunals do not have the same established basic rules. At one point, the military judge in al-Baluchi’s case blatantly said that he does not know what law he was required to apply in the case.
Connell explained that the reason for this uncertainty is because the rules for military tribunals are created ad hoc, which means that “the military commission which exists now is different than the one set up in 2006, which is different from the one that was set upin 2002.” Due to this lack of continuity, the judge is not certain what procedural framework to apply, and defense attorneys serving clients in Guantanamo find it exceedingly difficult to defend their clients meaningfully.
Connell has repeatedly asked the judge to establish a framework so that he can begin to make substantive arguments defending his client’s constitutional rights. One of his substantive and procedural arguments is that his client should be presumed to have all the rights in the Constitution, unless the prosecution can prove that granting such rights would be impossible in Guantanamo. The US government has attempted to presume that most constitutional rights do not apply in Guantanamo, and so a ruling from the judge demanding the opposite is requisite to establish fair trial procedures.
This failure of the military commission to set up its own rules operation is especially troubling when one considers the fact that Mr. al-Baluchi has been detained for the past eleven years. Not only does this violate his right to a speedy trial, but Connell explained that “in the meantime the government has seized a lot of witnesses and held them incommunicado, some witnesses have died, and other witnesses have gone into hiding.” Therefore, the government held al-Baluchi without charge and has made it nearly impossible for him to mount a defense by silencing witnesses that could prove his innocence.
Despite these setbacks, Connell argues that the trend emerging in his case is that the judge is taking away control from the prosecution and vesting it back in the hands of the defense where it belongs. By allowing defendants the ability to choose their own attire and whether they will participate in court, Judge Pohl has taken small steps to grant the accused greater discretion in defending themselves.
When asked about his overall expectations for an impartial trial, Connell cited to Judge Pohl who recently said “I have hope but little optimism.” He concluded that “I have hope that there is going to be a fair trial but I am withholding judgment until I see it actually happen.” He hopes that the public becomes more aware of the proceedings at Guantanamo and suggested that readers follow @GitmoWatch on Twitter, as one of the only sources of live news from court hearings in Guantanamo.
Waris Husain, J.D., is a writer for Dawn and Friday Times and a member on the board of directors for Americans For Democracy & Justice in Pakistan.