'There are No Rules Here:' A Visitor's Guide to Guantanamo and the Military Commissions

This article was originally published in SAMAR on September 26, 2006.

Marine Lt. Col. Colby Vokey faced one of his greatest challenges as the military lawyer for Omar Khadr, a Canadian nineteen year-old accused of murdering a U.S. soldier in Afghanistan when he was fifteen year-old, held at the U.S. Naval Base at Guantanamo Bay, Cuba. One April morning in Guantanamo Bay, Col. Robert Chester, who was the presiding officer of Khadr's commission proceedings, was berating Lt. Col. Vokey for having failed to alert him of Khadr's momentous decision to boycott the military commission proceedings in protest due to his transfer into solitary confinement. After a number of exchanges between Lt. Col. Vokey and Col. Chester, Lt. Col. Vokey erupted in frustration, shouting, "Every time we come down here there is an incredible burden just to do my job…There are no rules here." Not the typical complaint from counsel.

This past June in an extraordinary opinion that some have characterized as the most important decision on presidential powers during wartime, the U.S. Supreme Court agreed with Lt. Col. Vokey and struck down the military commissions as violating basic principles of U.S. and international law. In particular, the Court was troubled by the exclusion in certain instances of the accused and his civilian lawyer from the trial itself and the ability of the commissions to admit in evidence obtained through coercion. In pointing to these problematic areas the Court said: "Exigency . . . did not further justify the wholesale jettisoning of procedural protections." The decision, Hamdan v. Rumsfeld, requires that the commissions provide "all the judicial guarantees which are recognized as indispensable by civilized peoples" under the Geneva Conventions, a set of treaties applicable during armed conflict. But the Court also left the door open for Congress to step in and legislate a new judicial system to try detainees captured in the "war on terror." As we write this, Congress is debating the specific contours of this new system.

The military commissions the Supreme Court struck down in June were created by a November 2001 Presidential Order signed by President Bush. Following the signing of this Presidential Order, the Defense Department issues a series of military orders and instructions that came to make up the procedures for the military commissions at Guantanamo Bay. As attorneys at Human Rights First, a non-governmental organization working on issues of law and security, we had been officially "invited" by the Department of Defense to observe proceedings there in this new and unique set of legal proceedings. Together we have spent almost four weeks at Guantanamo watching the trials. Our job while we were there was to maintain a vigilant watch on the implementation of what we viewed to be unfair trial rules. Unfortunately we reached the same conclusions that the Supreme Court did—that the commissions violated the fundamental standards for fair trials.

Under the military commission rules, there was no right for independent judicial review; no requirement that the person deciding issues of law be a judge; no right to represent yourself; no right against the admission of evidence obtained through coercion; and most disquieting no right to be present at one's own trial. Adding to all of this were the two stealth provisions: one, stating that none of the military commission rules provided the detainee any rights under the law and second, that the rules could be and were changed at the whim of the Secretary of Defense. By observing the application of these rules in the commission proceedings themselves, we saw firsthand the negative effect of many of these rules while we were at Guantanamo Bay.

Arriving at Guantanamo

Arriving at Guantanamo Bay, Cuba is a surreal experience. To reach this outpost of the United States in Cuba, you have two choices. You may fly to Ft. Lauderdale and then take a twin engine plane four hours to reach Guantanamo Bay or you may fly out of Maryland in a C-130, the military's version of a tank with wings. The former option consists of a small plane with minimal comforts. There is no bathroom and the plane has crashed a number of times, leading the U.S. military to prohibit personnel from flying on the small plane (presumably not because of the lack of a toilet). The flight is usually filled with other civilians with various jobs at Guantanamo, including selling the military household supplies, construction workers, and other contractors. On the C-130, you are strapped in by the most rudimentary of seat belts, you sit in rows along with military personnel, commissions staff, defense and prosecution alike, shivering as the plane climbs into higher altitudes, and pray that you won't have to go the bathroom, a makeshift commode perched on high with a shower curtain ringed around it. Once the plane lands it will take a full day for the propellers' ringing in your ears to dissipate.

The military base at Guantanamo Bay stretches over 45 square miles of southeast Cuba. There is a delicious absurdity in the United States housing its most critical strategic detention facility in the "global war on terror" on the coast of Communist Cuba. The incongruous location dates back to a 1903 lease the United States entered into with the then new and independent Republic of Cuba after the Spanish-American War. By the lease's terms Cuba retains ultimate sovereignty over the land but the United States exercises complete jurisdiction and control over the area. It is a lease in perpetuity.

Our presence at Guantanamo Bay was always severely restricted. The base is separated by Cuba into two sections (the leeward and windward sides). The only way to travel between the two sides is over water (or through Cuba). Most of the functional part of the base, including the infamous detention center is on the leeward side. We along with the journalists all stayed in the combined bachelor's quarters on the windward side of the island. Every morning we would embark via boat to the windward side to observe the commissions and we would be transported back to the leeward side by evening. We were always accompanied by at least one, but usually two U.S. military escorts. Despite our initial expectations, we always found our military escorts to be very welcoming and engaging, often willing to discuss matters they witnessed in the commissions with us.

Since January 2002 almost 800 detainees have been held at Guantanamo Bay. There are currently some 450 detainees held there. Ten individuals have been charged with crimes under the military commission orders. The Bush administration selected Guantanamo Bay as the epicenter of its detention and strategic interrogation operations because it believed that outpost was outside of U.S. law and the reach of American federal courts. Based on the lease's language and contention that the "war on terror" was ongoing, the Bush administration argued that there could be no judicial review of challenges to detention. But in 2004, the Supreme Court handed the Bush Administration its first defeat regarding detainee rights and Presidential power, holding that all of the detainees at Guantanamo Bay must be permitted access to federal courts to challenge the legality of their detentions. This decision, Rasul v. Bush, was one in a series of court decisions hammering away at the administration's detention and interrogation policy since 2001. The administration, however, continues to take the position that the detainees enjoy no legal rights as a consequence of that decision.

Observing the military commissions

The commissions are also founded on the same principles that the law should not be applied to detainees captured in the "global war on terror." By crafting a new legal system at Guantanamo Bay (outside the United States, Department of Justice and Defense lawyers thought), the administration hoped to steer clear of certain rights as provided in the Constitution, such as the right against self-incrimination and right to confrontation of witnesses, which would be required in any U.S. federal court. But the military commission created by the administration went even further, creating a legal system that by all appearances seemed fixed on obtaining only guilty verdicts.

Observing the military commissions allowed us and journalists to see for the first time individuals detained at Guantanamo. Apart from lawyers representing the detainees in the habeas corpus claims in the U.S. district courts, no one outside of the U.S. government had actually seen the detainees at Guantanamo. For years, we along with other human rights groups had been criticizing the detention of hundreds of faceless individuals at Guantanamo. Seeing these detainees in the makeshift commission room, communicating with the presiding officer and generally telling their story gave these previously faceless detainees, despite the serious allegations against them, individual personalities. So we now know that Binyam Muhammad has a wonderful sense of humor and a flare for out-of-context idioms; Abdul Zahir, the only Afghan charged before the commissions, is quiet and self-contained; Omar Khadr, a nineteen year-old who has spent his teenage years at Guantanamo, has the freshly scrubbed look of teenage boy anywhere in the world. Unfortunately, seeing these detainees did not make the problems we observed with the commissions more palatable.

One of the biggest problems with the military commissions, and one we witnessed, was the ability of officials in the Defense Department to change the rules whenever they wanted. Since the President created these commissions in November 2001, the rules that apply in the military commissions had been changed no less than fourteen times. This made it close to impossible for lawyers to know under what rules their clients were being tried and made lodging a defense increasingly difficult. This sentiment was echoed numerous times by military and civilian defense lawyers outside of the commissions. Army Cpt. John Merriam who represented Omar Khadr at one point said to the presiding officer, "Sir, you should halt these proceedings ... until the government gets the rules together." A central component of the rule of law is that the rules and laws governing the judicial process are set in advance, publicly disclosed, and apply equally to all. The constantly changing nature of the rules governing the military commissions undermined this fundamental concept – a point not lost on the Supreme Court in its Hamdan decision.

Given the problematic nature of the military commission system, many of the military lawyers were finding it difficult to represent clients who were refusing their services. Ali Hamza Ahmed Sulayman al Bahlul vociferously rejected having to be saddled with an American military lawyer. As al Bahlul explained in the proceedings room, he considered the United States to be his enemy and he didn't see how he was supposed to trust a U.S. military lawyer. Given that, al Bahlul asked whether he could represent himself in these proceedings. That request was denied by the presiding officer, who played the role of a judge in these proceedings. We watched as al Bahlul's dedicated military lawyer continued to try to build some sort of trust with his client in spite of the constantly changing rules. It was clear that the structure of the commissions—the fact that the rules were constantly changing; that the detainees knew their lawyers could see evidence the lawyers could not share with the detainees; and that for the past four years many had been held without access to any lawyer made it close to impossible for these lawyers to quickly build the type of relationship with their client needed in order to fully defend their client's interests.

U.S. Detentions and Interrogations at Guantanamo Bay

But even more than the particular problems with the commission system, the military commission proceedings at Guantanamo Bay were and continue to be a microcosm of the larger problems of the United States' detention and interrogation policy around the world since September 11, 2001. While we were at Guantanamo, we were able to visit Camp X-ray. Camp X-ray was the first makeshift detention center where detainees were held when they first arrived in January 2002. Camp X-ray held up to 300 prisoners before it was closed in April 2002 and has been heavily criticized for its detention conditions. Camp X-ray was composed largely of wooden buildings and chain link fence prison cells, now overgrown with vines and weeds. The interrogation room was a nondescript wooden hut measuring about 15 by 40 feet. It was empty, without any markings, and it was difficult to imagine what happened there. Though from all of the released internal government documents we unfortunately knew what had happened.

Looming over every commission proceeding was the larger question of the treatment of detainees both at Guantanamo and in Afghanistan over the past four years. The Administration's policy on interrogation and detention, in particular, has been marked by an effort to contravene or avoid both the judicial and congressional processes, retaining sole authority and policymaking within the Executive Branch. And extralegal measures taken by the Administration have jeopardized our allies' prosecution and prevention of suspected terrorists. All of this is of great concern particularly in the context of a war on terror that has no determinable temporal or geographic endpoint.

While Administration members may have sincerely believed that al Qaeda and Taliban did not deserve the protections of the Geneva Conventions, one of the convenient benefits of such inapplicability of the laws of war that the now Attorney General Alberto Gonzales noted in a memo to the President was that without the applications of the laws of war, Government officials including the President could not be prosecuted under the recently passed federal war crimes act for abusing detainees. Similarly another government memo concluded that even if interrogation of an al Qaeda operative reached the level of torture, it could not be prosecuted as a war crime in the International Criminal Court because the President found the Geneva Conventions did not apply.

The effect of these executive memos and policies had an effect on the military commissions in that a number of the defendants have alleged being severely mistreated in Afghanistan and later in Guantanamo. Omar Khadr alleges that he was held in contorted stress positions, left to urinate and defecate on himself; military police poured pine oil solvent on him and used him as a human mop to clean the floor; and he was repeatedly threatened with rape and rendition to countries where there would likely be torture; and subjected to extremely cold temperatures.

One psychiatrist signed a sworn declaration, affirming that the conditions of Salim Ahmed Hamdan, "place him at significant risk for future psychiatric deterioration"; "make [him] particularly susceptible to mental coercion and false confession"; and may significantly impair "his ability to assess his legal situation and assist defense counsel." Despite these obstacles, his case did make it to the Supreme Court.

In addition, a number of the defendants complained to the commission about being transferred into solitary confinement to await their trial. Khadr was held in solitary confinement for at least 40 months and continues to be held in those conditions. While we were there, his lawyers raised the issue before the commissions, but to no avail. Khadr remained in solitary.

The question of torture and abuse played out in the commission proceedings in a number of ways. In particular, one of the major problems with the commission rules was that they allowed in evidence obtained through torture or coercion. This rule goes against centuries of U.S. practice and dedication to rooting out torture because it is against the principles of civilized societies. And yet, during the commission proceedings, when questioned about this rule by Maj. Tom Fleener, the military lawyer for Ali Hamza Ahmed Sulayman al Bahlul, Col. Peter Brownback III, the presiding officer in the case, said that he personally believed that torture was not good, but that he wouldn't rule out the possibility of admitting in evidence obtained under torture. That we would hear an American military official acknowledge that evidence obtained through torture would actually be admitted into evidence in a judicial procedure in the United States would have been unfathomable five years ago.

Our experience observing the problems with the military commissions system has convinced us of the need for a judicial system to try terrorists which contains all of the critical protections required under U.S. and international law. Anything less than that not only risks the possibility of sentencing innocent individuals, but also further harms the United States' already diminishing reputation as a leader of human rights. The Supreme Court decision is one step on the road to repairing that image. And Congress's amending of the military commission rules can be another step on this road, given that they create a judicial system infused with the critical legal protections provided under military and civilian justice systems. But the truth of the matter is that those prisoners expected to be tried before a military commission is miniscule compared to the larger detainee population. There remain approximately 1000 individuals still detained by the United States in Afghanistan and at Guantanamo Bay. The critical question is when will the United States bring all of these individuals within the rules prescribed by U.S. and international law, and repair its battered reputation as a human rights leader.

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