Court was back in session this week at Guantanamo Bay, this time for a pre-trial hearing in the case against Noor Uthman Muhammed. Noor, as he is known, is one of the last Sudanese nationals still being held at Guantanamo. He is charged in the military commissions with conspiracy and providing material support for terrorism. Historically, US military commissions have been created to try war crimes. However, despite Obama administration promises to fix the flawed Bush-era military commissions, each of the crimes with which Noor is charged have not traditionally been considered war crimes. In fact, conspiracy and providing material support for terrorism are crimes commonly prosecuted in US federal courts - and much more quickly than in the military commissions. In the past eight years there have been only four convictions in terrorism cases at Guantanamo Bay but more than four hundred convictions in federal courts, including those of high-level suspects such as 9/11 al Qaeda operative Zacarias Moussaoui and Richard Reid, the so-called "shoe bomber."
Noor shuffled into the courtroom on Tuesday, with soldiers holding his arms. He was wearing the white prison uniform issued to "compliant" detainees. The clothing swamped his slight frame and added to his fragile appearance. As the hearing began, Noor put on headphones to hear a translated version of the proceedings. The defense's first order of business was to ask for a blanket to protect Noor from the air in the heavily air-conditioned courtroom. Eventually, a guard appeared with a white blanket in which Noor wrapped himself. The hearing then turned to several substantive issues.
As I listened to the arguments I could not help but wonder why so much time and energy was being spent deliberating over issues that either never would have arisen or easily could have been resolved in the time-tested federal court system. Ironically, during the proceedings prosecutors repeatedly invoked federal court rules in support of their arguments -- the same rules that some proponents of the military commissions claim would be too lenient on defendants.
For example, one matter before the commission on Tuesday related to defense access to witnesses the government planned to call during a hearing in November. At that hearing the government will need to show that Noor is an "alien unprivileged enemy belligerent" - that is, that he fits the definition of someone who can be tried before a military commission. If he does not fit the definition, then the military commission will not be able to hear his case and it will be dismissed.
To prove that Noor is an alien unprivileged enemy belligerent the government plans to call the FBI agents who interrogated Noor to the stand. The defense wanted an opportunity to interview the agents before the hearing but so far, the FBI agents have refused. Thus, defense lawyers asked that the commission require the government to make the agents available and if they continue to refuse, that any evidence they attempt to introduce be excluded.
In support of his position, the prosecutor relied heavily on the practice of federal courts where it would be the agents' choice whether or not to speak to defense counsel. In federal court, there is no requirement that a witness, whether an agent or not, speak to the defendant or defense counsel prior to taking the witness stand. US military practice actually differs in this area. In a court-martial, the defense does have the opportunity to interview prosecution witnesses before they testify.
Herein lies an example of a significant problem with the military commissions. Without an established set of rules, and with an express statement in the statute that while the military commissions are based on the Uniform Code of Military Justice, court-martial cases are not binding precedent, each side is left to choose its preferred legal system or to argue for an entirely new rule of interpretation.
In Noor's case before the commission this week, the defense clearly wanted to interview the FBI agents before they took the witness stand. The prosecutor clearly would rather they did not. Because there is no established set of rules for the military commissions on this issue, the prosecutor turned to federal court rules to argue his point. In other instances, however the prosecution preferred the rules of courts-martial.
These courts may try some of the most important cases in years. To hold a fair hearing and come to a just result lawyers should not have the opportunity to pick and choose from varying sets of rules depending upon which ones best suit their clients' interests. The federal court system, while not perfect, has been in existence for decades and already has an established a set of rules that well balances the concerns of the defense and prosecution.
While the outcome might not be what the defense would want, if Noor were being tried in federal criminal court, this week's hearing would never even have taken place. There would not have been any question as to whether or not defense counsel had access to prosecution witnesses prior to trial. Writing the rules as you go along is no way to run a trial.