The latest military commission trial at Guantanamo Bay opened the door for the defendant's release in a few years. But the continued use of indefinite detention and lax rules on hearsay evidence still plague the system. These put enormous pressure on defendants to plea-bargain to avoid the dangers of going to trial in a process that is tipped against them.
On Tuesday 15 February, Sudanese national Noor Uthman Muhammed pled guilty to conspiracy and providing material support for terrorism for the role he played at the Khalden training camp in Afghanistan from 1996 to 2000. The charge carried a possible life term, but under the terms of the plea agreement, secret until last week, he will be released after 34 months. In exchange, he has agreed to cooperate with the US government in the prosecution of other cases of Guantanamo detainees.
Should Noor, as he asked to be called, fail to cooperate, a 14-year sentence will be imposed. This was determined at a sentencing hearing last week before a nine-member military jury. Deciding between 10 and 14 years, they chose 14, giving him the maximum penalty.
On the one hand, the agreement is good for Noor. Infirm and suffering from tuberculosis and hepatitis B, he can likely get out of Guantanamo and back to Sudan relatively soon. On the other hand, the circumstances under which the agreement was obtained and the difficulty the defense had in presenting and challenging evidence, shows that the military commission system favors the prosecution with advantages unavailable in a US federal court.
Noor has already been held by the US government for nearly nine years. During confinement, first at Bagram prison in Afghanistan and then at Guantanamo, Noor endured abusive conditions including painful shackling, exposure to extreme hot and cold temperatures, isolated confinement, deafening music for hours on end, and forced nudity and beatings in the presence of female soldiers.
Although the commission went to great lengths at the hearing to demonstrate the guilty plea was given voluntarily, it is hard to believe the conditions and lack of access to trial for all those years did not put considerable pressure on Noor to agree to a deal. As Noor's lead defense attorney, Howard Cabot, put it, "Nine years in a country that prides itself on the right to a speedy trial is an awfully long time to wait."
In addition to the right to a timely trial, also central to the US justice system is the defendant's ability to confront the witnesses against him. The military commissions' relaxed rules on hearsay - secondhand evidence that is normally excluded from the trial - further worked to Noor's disadvantage. During the entire proceeding, not one live witness was produced, either by the government or the defense. Every piece of testimony was a written statement read or video recording played to the jury. Although this was a sentencing proceeding and not a trial, the lax hearsay rules would still be permissible in a contested military commission trial. This differs starkly from federal court where the opportunity to cross-examine and confront witnesses is sacrosanct.
Cabot believes these hearsay restrictions had considerable impact on his ability to put forward Noor's case. For example, the prosecutor, Lt Com Arthur L Gaston III, in an attempt to connect Noor to large-scale terrorist attacks committed against the US, introduced testimony related to Ahmed Ressam, the so-called "millennium" bomber who was intercepted from Canada with explosives on his way to Los Angeles international airport. Gaston did not produce Ressam, but rather a written summary of evidence against him.
The testimony went into great detail about the methods Ressam used, including killing dogs to test the poisons and explosives he planned to use in the plot. In a small portion of it, Ressam stated that he had been to Khalden and received basic training from Noor. Noor never denied he had trained individuals in small weapons and artillery at Khalden, but he maintained it was not in support of terrorism. Rather, according to a statement from Noor read to the jury, he was trained, and trained others, for the purpose of defending Islam. Further, he only did so for a limited time, later taking up a different job getting food, water and supplies for the camp. "I never became a member of the Taliban or al-Qaida ... and I never planned or participated in any terrorist attack," read the statement. The evidence from Ressam, which could not be contested, painted a very different picture.
Cabot said he would have welcomed the opportunity to challenge the Ressam evidence. That's the kind of witness, Cabot said, "you want to look in the eye and cross-examine." And assistant defense attorney, Marine Captain Christopher Kannady warned against punishing Noor for the acts of others.
In the end, though, it was not the military commission verdict but the plea agreement that settled Noor's fate. Although largely symbolic unless Noor fails to cooperate, the sentencing hearing demonstrated how the nature and fairness of the underlying system can impact greatly a defendant's decision to take a plea. The less fair the trial, the stronger the hand the prosecution holds.
Improvements in the military commissions since they were first established by the Bush administration in 2001 make them look on paper more like civilian courts. In reality, they are still playing with a stacked deck.