There was a ghost in the Guantanamo courtroom last month. The judge was there, as was the prosecution team, defense counsel, stenographer, paralegal, courtroom artist, several uniformed personnel, a couple of journalists and a few observers. But the accused, Mohammed Kamin, was missing.
Kamin, an Afghan in his early thirties, has been detained at Guantánamo Bay for five years as an unlawful enemy combatant (UEC). He is charged with "providing material support for terrorism." The specific charges against Kamin are set out like a multiple-choice exam: Kamin is alleged to have joined al Qaeda and to have provided material support to al Qaeda by "performing at least one of the following:" attending an al Qaeda training camp, offering the use of his residence to al Qaeda, delivering weapons, supplies or equipment to al Qaeda, conducting surveillance of US forces, and placing land mines and missiles in specified locations.
I was at Kamin's pretrial hearing on October 23, 2008, as an official observer on behalf of Human Rights Watch.
One can observe a military commissions hearing and feel reassured by the calm tone of the participants, the formal trappings of the courtroom setting, and the earnest exchange of legal argument between the intense defense counsel (in this case, Lt. Richard Federico), the affable prosecutor (Maj. Omar Ashmawy), and the genial judge (Air Force Col. Thomas Cumbie). These are the familiar, and thus comforting, attributes of justice in action. But then, every so often, the violence that lies beyond the courtroom erupts out of the well modulated hum of the process and hits you in the face.
This time, it was delivered via Lt. Tara Lawlor, the soldier assigned to go to Kamin's cell at 5:00 am and advise him of his court appearance. Lawlor told the court that Kamin ripped up the written notification of the hearing, kicked the door and walls of his cell, made lewd gestures and hurled verbal abuse in Pashtu and English. According to Lawlor, other detainees then joined in, creating a loud disturbance in the camp where Kamin is being held. Lt. Lawlor testified that Kamin yelled that he was innocent and that George Bush was the one who deserved to be on trial. Kamin had communicated his intention to boycott the proceedings in as hostile and contemptuous a manner as his circumstances allowed.
Following Lawlor's testimony, the prosecution asked the judge to order that Kamin be forcibly extracted from his cell and brought to the courtroom. At the previous hearing, Judge Cumbie signed such a ‘forcible extraction' order, and Kamin was brought to the court in shackles, bruised and cut, after allegedly biting and spitting at the guards who attempted to escort him against his will. Despite this prior incident, the prosecution contended that it was in the accused's own interests and in the interests of justice that he attend the hearing. Perhaps Kamin would be encouraged to participate voluntarily in subsequent hearings if he could see "the lengths we go to to ensure that his rights are being preserved," the prosecution argued.
Kamin's defense counsel, Lt. Richard Federico, opposed any effort to compel Kamin's appearance. He did not refer to Kamin as his client, because he couldn't: Kamin had refused his legal representation. Lt. Federico noted the ethical dilemma of advocating for someone who did not want him as counsel, while, at the same time, provisions of the Military Commissions Act obliged Lt. Federico to continue in this role. He then told the guards that he could not agree to anything that would jeopardize the health or physical safety of Kamin or of the guards forcibly escorting him to court.
The judge asked the prosecution an obvious question: The government controls every moment of Mohammed Kamin's life. If the government wanted Kamin in the courtroom, why couldn't they deliver him with as much force as they cared to expend? The prosecution acknowledged this to be true, but seemed to prefer that any violence inflicted for purposes of bringing Kamin to court would bear the imprimatur of the military commissions judge, not the government.
Judge Cumbie eventually ruled that it was not in the interest of justice to compel Kamin's presence in light of the virtual certainty that "it would be a matter of seconds" before he would have to be removed. (The Military Commissions Act rules guarantees the accused's right to be present, unless the accused acts in a way that is so disruptive to the proceedings as to justify his removal.) The prosecution seemed relieved by this ruling: at least the government could not be blamed for the bad optics of staging a trial in the absence of the accused. It was the judge who decided that Kamin should not be dragged to his own pre-trial hearing.
Leaving issues of mental competence aside, it is unsurprising that Kamin -- like more than half of the detainees whose cases have been referred to the military commissions - would refuse to meet with counsel or participate in his trial. It is not difficult to imagine why Kamin might mistrust a lawyer wearing the same uniform as his guards and interrogators, and might lack confidence in a trial conducted by the same people who have subjected him to more than five years of indefinite detention without charge. Maybe Kamin has also figured out that that even if he participates in this trial, and even if he is acquitted, the United States government claims the authority to continue to detain him, so long as there is an ongoing "war on terror", which may be forever. (The imminent expiry of Hamdan's sentence will give the government its first opportunity to exercise this option. Salim Hamdan, formerly Obama bin Laden's driver, was convicted in August 2008 of providing material support for terrorism, and sentenced to 5 and a half years. Taking into account ‘time served' in Guantanamo, his sentence expires on December 31.) . So if the US government insists that it can detain him indefinitely, regardless of the outcome of the trial, why participate in the trial? One might disagree with this assessment, but one can hardly call it irrational.
The truth is that the military defense counsel that I have observed and encountered at Guantanamo have been exemplary in their integrity, zeal, and commitment to defending their clients. They have not flinched at indicting the military commissions system as irreconcilable with the rule of law. They can itemize better than anyone, in meticulous detail, the myriad ways in which the Military Commission process is fundamentally unfair in principle and in practice, on the books and on the ground. They also know that the better the job they do, the more they will be cited to validate the system they denounce. It is the paradox of legitimation, supersized.
By way of illustration, consider the motion for dismissal brought by Lt. Federico. Lt. Frederica had for months been seeking discovery from the prosecution, but to no avail. As Lt. Federico explained to Judge Cumbie, the obstruction did not lie exclusively or even primarily with the prosecution, although the prosecution's conduct had not been irreproachable. The primary problem was the chronic and systemic failure of the intelligence community (the CIA, the NSA and the Criminal Investigation Task Force) to share information with the prosecution.
The allegations of abuse, coercion and torture against intelligence officials are by now notorious. But intelligence agencies tend to guard their product with an obsessive secrecy, as if they owned it exclusively. In many cases, their unwillingness to share the information they gather extends not only to those outside government, but also to law enforcement agencies within the government who wish to use it for other purposes - such as prosecution before a military commission.
This ‘veil of secrecy' shrouding intelligence data stymies inter-agency cooperation and means that defense counsel is ultimately denied knowledge of and access to relevant and potentially exculpatory information in government hands, including evidence to which the defense is entitled as of right. This happens because the intelligence agencies either do not acknowledge that they have the information or they refuse to share it with the prosecution, thereby putting it outside the reach of discovery. This bureaucratic failure to collaborate between intelligence and law enforcement agencies precedes the military commissions, but its impact on the Guantánamo trials is acute.
And so Lt. Federico argued that the appropriate remedy for chronically inadequate discovery is dismissal of the charges, either with prejudice (meaning that charges cannot be re-initiated) or without prejudice. Rival government agencies have no incentive to resolve their internecine conflict, he contended, unless and until the government realizes that it has something to lose if the intelligence community does not share information. A dismissal of charges would communicate that message.
Judge Cumbie acknowledged the delay and insufficiency of discovery to date, and even adverted to the value of deterrence. He also made it clear that dismissal was both premature and unduly harsh a remedy at this stage. Why not just seek to compel the prosecution to deliver to the defense the evidence it has, explain what evidence it does not have and how it plans to obtain it from other government agencies, and give to the judge for assessment any evidence that the prosecution believes is protected by national security confidentiality? It is true that this will impose yet more delay, and in the usual case, a delay in proceeding to trial prejudices an accused's interest in securing a speedy trial leading (the accused hopes) to an acquittal and a resumption of liberty. But, according to Judge Cumbie, prejudice to the accused is not a problem here.
And here is where we return to the ghost in the room: After all, said Judge Cumbie, it is not as if Kamin has been prejudiced by the delay in proceeding to trial. He is not in pretrial custody. Nor is he someone awaiting resolution of his case so he can move on with his life. And, moreover, he evidently does not care about his trial anyway, since he refuses to participate. All of which is true: Kamin was not been held as a pre-trial detainee - he was detained as an "unlawful enemy combatant" and had been held for five years before any charges were ever brought against him. According to the US government, they can continue to detain him even if he is acquitted. And the fact that he refused to come to court allowed the judge to conclude that further delay would cause little harm.
Perhaps there is little prejudice to an accused in delaying an unfair trail. Of course, this is not an argument in defense of delay, but rather an argument in favor of moving Kamin's case to a US federal court where he would be given a fair trial. This urgent task now falls to President-elect Obama.
Audrey Macklin is a law professor at the University of Toronto