Observing Guantánamo’s military commission hearings (Part 2)

On 21 July 2008, the first trial to take place before a military commission convened under the Military Commissions Act of 2006 opened at the US Naval Base in Guantánamo Bay, Cuba.  Matthew Pollard, Amnesty International’s legal advisor, was present to observe the proceedings. In the second part of a two-part series, he describes the hearings and discusses the reasons for his being in Guantánamo. Tell us more about your role as an observer at the hearings. Why is it important that you are there? My primary role as an observer at the hearings is to document any aspects of the actual proceedings that may affect their fairness. The framework of legislation (Military Commissions Act 2006) and rules (the “Manual for Military Commissions”) under which the commissions operate mean that no matter what happens at the actual trial, subjecting detainees to the process clearly violates their human rights. However, what actually happens at the trial is still important. For instance, rulings by the military judge have the potential either to mitigate somewhat the fundamental unfairness inherent in the system or to make it far worse. It is important for Amnesty International to be here to see which direction, within the available room for manoeuvre, the rulings go. Actions or reactions on the part of the commission members, witnesses, and lawyers at the trial, as well as the physical and psychological environment in which it takes place, may also either render it even more unfair or mitigate the unfairness written into the system. The evidence that is presented at the hearing of an accused also has the potential to reveal both violations of human rights or humanitarian law committed by persons acting on behalf of states, and abuses of human rights or violations of humanitarian law committed by non-state actors including armed groups. However, in the latter respect, Amnesty International must exercise extra caution as some of the unfair aspects of these proceedings allow the admission of evidence that is itself obtained in violation of human rights, which would not therefore form a sound or acceptable basis for reaching any conclusions. Where are the hearings being held? The room where the hearings I am observing are held is designed to resemble an ordinary courtroom in the United States. Of course, it still looks somewhat different, as the people providing security are all in military uniform, as are the members of the jury and some of the lawyers.   I understand, however, that the second courtroom, which was purpose-built for hearings involving “high value detainees” is somewhat more unusual, in that it isolates the audience physically in a sound-proof chamber, and all audio is delayed in order to allow the military judge or national security official to cut the sound if they consider something covered by national security secrecy has been said. Is the way in which the military commission hearings are held different from the way in which other hearings, both in the USA and in other countries, are held? Yes, the military commission hearings are very different from ordinary civilian and military hearings in the US, in that many of the fundamental guarantees needed for a trial to be truly fair are missing or undermined. While certain improvements have been won over the last few years, the current military commission system still allows the effects of much of the lawlessness and abuse that forms the overall context within which the commissions operate to remain concealed from the public and to go without remedy or redress.  For instance, the rules of evidence are very different. Statements that were obtained through coercion can be used in the military commissions, including some obtained through cruel, inhuman or degrading treatment and perhaps even (depending on how the legislation and rules are ultimately interpreted) conduct considered under international law to amount to torture. Evidence is also admitted in these proceedings even from periods during which the person was denied access to counsel for weeks or months at a time and was not advised of their right to remain silent. Second- and third-hand statements (‘hearsay evidence’) are also admissible in these proceedings in circumstances that would be prohibited in ordinary criminal or military courts in the US. Further, the circumstances in which such statements were obtained can be kept secret on national security grounds, precluding proper assessment of the acceptability and reliability of such statements. Indeed, generally, the military commissions allow for much more use of classified or otherwise secret evidence than might normally be permitted in an ordinary criminal trial. Further, only non-US nationals can be prosecuted by these military commissions. If a US national committed exactly the same acts as those alleged in the prosecutions taking place in this court, they could only be tried in the ordinary US civilian courts (or if they were members of the armed forces, in ordinary courts-martial), where far greater protections and safeguards are available. Discrimination on the basis of national origin in the fairness of criminal trial procedures is prohibited by international law. The military judge and “members of the military commission” (essentially the jury) are all part of the US armed forces and therefore part of the executive branch of government rather than members of an independent judiciary and randomly selected members of the public. The standard for conviction is also lower than that typically required for a criminal trial. Only two-thirds of the commission members must agree to a vote of “guilty” in order to convict. Crucially, even if a particular accused is found not guilty by a military commission, this does not guarantee that they will be released as would be required after an ordinary criminal trial. Even if someone is acquitted after a trial by military commission, the US administration maintains that it can continue to detain them indefinitely – perhaps for life. What are the ‘rules of conduct’ for external observers at the hearings? The “ground rules” that NGOs and their observers must agree to abide by are mainly:

to not publish, release, discuss or share information identified as protected from disclosure, even if it is inadvertently disclosed during a session;   to follow the instructions of the military judge; not to record or document electronically the proceedings or their participants from the courtroom; not to reveal the identities of individuals beyond those already released to the public, including the judge, commission members, prosecutors and defence lawyers, and witnesses, and staff; not to disclose routes or movements of detainees.

Breaches of those rules could result in the NGO’s access to hearings being removed or restricted, or even to prosecution of the individual observer. In the trial I have been observing, some witnesses testify under pseudonyms (such as “witness #1”) to protect their identity, and some evidence is clearly treated as “secret” and protected from the outset. The defence in the trial appeared to be careful to avoid asking questions in public that would be likely to reveal or elicit classified information. Technological means are used to ensure that some photos or documents that the witness, military judge, lawyers and commission members can see is not seen by the audience. However, the commissions do have the power to exclude the observers from the hearing room if they consider it necessary to do so, though that was not done in the week of observations I just completed. These “ground rules” posed no particular problem to me so far, though one can imagine that if, in the future, information revealing grave violations of human rights were inadvertently revealed in a hearing at which an NGO observer was in attendance, and the military judge ordered non-disclosure, the situation could weigh very heavily on the conscience of that observer. What would you say is the hardest thing about being there? For me as an NGO observer, I have suffered few hardships here. The military and civilian personnel with whom I have come into contact have on the whole been courteous and professional and our minders in particular helped ensure that we NGO observers could participate in some social activities so that we are not left in our tents all the time. The hearings have been intentionally designed to look as much as possible like an ordinary criminal trial. The only detainee I have seen is the person being tried in the proceedings and then only while he is in the courtroom and so my immediate sense of the hardships he and others face when they are isolated in the detention facilities is very limited. Any complaints I might have about being here seem wholly insignificant when compared to the treatment and conditions under which the detainees must live. The hardest thing about being here, for me, then, is to keep in the forefront of my mind some cold hard facts about the other reality that lies just behind all of this – the past and continuing violations of the human rights of the detainees that has taken place not only before they arrived here at Guantánamo Bay, but somewhere possibly just around the corner from a restaurant, shop or ice cream parlour I have visited. Some of that is the physical and mental abuse to which detainees have been subjected –which I have come to understand some, perhaps many, people on the Base do not support. But also, observing the trial, it is all too easy to get caught up in the narrative of the merits of the case against an individual detainee, to slip into thinking “is he guilty or innocent” as if we as observers were ourselves the triers of fact in a fair and lawful hearing.   The mission of Amnesty International observers is not in any way related to the guilt or innocence of a particular accused – a question irrelevant to the rights to which they are entitled in their detention and trial here. In other words, the fiction that what is taking place at Guantánamo is a form of justice has indeed been artfully and seductively constructed – so one of the main challenges facing any observer is to continue to look past the superficial ways in which the process visually resembles an ‘ordinary’ trial so as to keep in clear focus the extreme unfairness by which the entire process, and the detention of these people here, is fundamentally tainted.