Proceedings began again at Guantanamo this week in the military commission system, which some have been touting as a better forum to try terrorism suspects than US federal courts. But if the system's proponents were hoping this week's proceedings would showcase the strengths of the military system, they were disappointed, yet again.
The man in the dock this week was Noor Uthman Muhammed, a Sudanese national accused of working at and recruiting for an al Qaeda training camp in Afghanistan in the late 1990s. As usual, uncertainty tainted the proceedings, in part because the military commissions are still operating under the problematic rules drafted during the previous administration. Even though Congress passed a new Military Commissions Act last October, the Department of Defense has still not issued revised rules that fill in key details absent from the statute.
The hearing took place in the Expeditionary Legal Complex, the courtroom-in-a-barn built for the trial of Khalid Sheikh Mohammed and the other alleged 9/11 plotters. In November, Attorney General Eric Holder announced that those five defendants would be prosecuted in federal court in New York City, where most of the victims of the attacks died. But after security assessments put the cost of holding the trial in New York at $200 million a year and drew criticism from New York's political leadership, the administration backtracked and is reportedly considering reverting to a military commission trial.
Administration proponents of the military commissions would do well to take note of this week's proceedings.
Noor, as he is referred to, was the first detainee to have a military commission hearing since President Obama missed his own deadline to close the Guantanamo prison in January. Perhaps that explains the look of tired resignation on Noor's face as he was brought in shackles to the high-tech courtroom. Nearing the eighth anniversary of his detention, Noor sat silently and without protest as the military commission judge announced that his trial would not begin until early 2011.
The delay is largely due to the volumes of classified information that will be used in the case - information that the prosecution says is too secret for the defense to see, and instead produces scrubbed summaries that must first be approved by the judge. While the procedure closely mimics what would take place in federal court, military commission judges and prosecutors have no experience with this process, which was derived from the federal Classified Information Procedures Act. Given that in the past, military commission prosecutors unjustifiably refused to provide the defense fair access to evidence, this gives some reason for concern.
Another key problem on display was restrictions on the defendant's right to counsel. Military commission rules require all defense counsel to be present unless excused by the client. In this case, Noor retained his long-standing military lawyer, but the Army refused to let her attend the hearing.
Two years ago, Noor was assigned Army Major Amy Fitzgibbons as his military counsel. Despite the numerous barriers to establishing a meaningful attorney-client relationship at Guantanamo, Fitzgibbons was able to do so and represented Noor vigorously during her time in the military. An activated reservist, Fitzgibbons left active duty temporarily in November 2009, but continued to represent Noor as a civilian defense attorney until she started a new job with the Army's Trial Defense Service last month.
Fitzgibbons had hoped to continue to represent her client and had requested permission to do so. But the Army declared that she was "unavailable" to be his lawyer now that she had taken a job representing soldiers in courts-martial, and that by taking the job she had severed the attorney-client relationship.
Both the Army and the Office of Military Commissions, which assigns defense lawyers in military commission cases, are part of the Department of Defense. It would be easy enough for the Army to allow Fitzgibbons to continue to participate in Noor's defense, and it would be consistent with how the Army has treated similar cases in the past. Yet the Army has refused to do so, telling Fitzgibbons that the only way she can keep the case is to demobilize as a reservist (essentially, quit her job) and return to civilian life, where she could represent her client without pay.
The military judge, acknowledging that the proceedings could not continue until the counsel issue was resolved, ruled on the issue that day. Although the judge recognized the attorney-client relationship that Fitzgibbons had established with Noor, and noted that Noor wants Fitzgibbons to continue to represent him, she said she had no power to order a remedy.
The problem facing the judge was that she had no legal authority over anyone outside of the courtroom. Unable to order the Army to allow Fitzgibbons to represent Noor, she was forced simply to request that the Army and the Office of Military Commissions work together to try to accommodate Fitzgibbons' and Noor's wishes.
Thus, the system was once again crippled by a problem that would never have arisen in federal court. And so the hearing ended less than two hours after it started, with no solution in sight to the counsel stalemate.
It is not until the next hearing, set for August, that the judge will determine whether the military commission even has jurisdiction over Noor. When Congress revised the statute governing the military commissions last October, it also changed the category of people that the commissions can be used to try from "unlawful enemy combatant" to "unprivileged enemy belligerent."
While the government claims there is no material difference between the two laws on this question, military commissions only have jurisdiction over a narrowly defined group of people. Noor has challenged the court's jurisdiction, and ordinarily no court would proceed without first answering that fundamental question.
Just like going forward with pre-trial hearings before the commissions rulebook is written, holding hearings before determining whether the court has jurisdiction over the defendant is more than a little peculiar. But this is how things work at Guantanamo.
For a system that the administration is contemplating using for the most important case in decades -- the 9/11 trial - its limitations are striking. It is no wonder that in the last eight years the military commissions have convicted only three people, while hundreds of terrorism cases have been prosecuted in federal court. As the observers and reporters filed out of the courtroom wondering what to do for two more days on the isolated military base, I couldn't help but wonder how many more bumps in the road this system can tolerate.
