Law v Justice. Guantánamo farce continues

On February 6, 2004, the Department of Defense issued charges against Ali Hamza Ahmed Sulayman al Bahlul, a native of Yemen, one of the six men designated by President Bush in July 2003 as eligible for trial by military commission under the President's Military Order of November 13, 2001.

A military commission preliminary hearing began the week of August 23, 2004. But commission hearings were halted in November 2004 after a district judge ruled they violate U.S. and international law. An appeals court decision in July 2005 overturned that ruling, clearing the way for this week's resumption.

Military documents summing up the charges against Bahlul allege that Osama bin Laden commissioned him to make a propaganda video glorifying the attack on the USS Cole in Yemen and to collect news feeds showing the Sept. 11, 2001, terrorist attacks in the United States. In his first appearance before the military commission, in August 2004, Bahlul admitted being a member of al Qaeda and asked to represent himself or to be represented by a Yemeni.

"People of the entire globe should know I testify that I am from al Qaeda," Bahlul said in court in 2004.

Al Bahlul is represented by Army reservist Maj. Tom Fleener. In July 2005, John D. Altenburg Jr., appointing authority for the Defense Department's Office of Military Commissions, ruled that Bahlul may not represent himself. Under military commissions rules, detailed military defense counsel must represent all defendants. Further, private defense attorneys are required to be U.S. citizens and possess a secret security clearance. Detainees are also allowed to have foreign legal consultants.

Maj. Tom Fleener told the presiding officer Defense Secretary Donald Rumsfeld and his appointees set rules that violate President George W. Bush's order to hold fair trials for prisoners charged with terrorism in the Guantanamo tribunals.

"We can't help it that the secretary of defense and his delegees (sic) have messed this thing up, but they have,"

"If the rules don't provide for a full and fair trial, then they violate the president's order."

Fleener attempted persuade the presiding officer, Col. Peter Brownback, to let al Bahlul act as his own attorney on charges of conspiring to attack civilians and destroy property.

The Pentagon has set Tribunal rules set that require the defendants to have U.S. military lawyers who are authorized to see secret evidence that the accused may not see. Pentagon officials have refused defense requests to allow self-representation, which Fleener called a fundamental right in nearly every court on Earth.

Bahlul refuses to cooperate with any lawyer appointed by the U.S. military. He has demanded to act as his own attorney or to have a Yemeni lawyer, and declared a boycott when the request was denied during a March hearing. He did not attend his hearing on Friday 7th April 2006 at Guantanamo Bay.

Fleener said Bahlul cannot get a fair trial unless the rules change. "As the world looks at this system, it's going to have no legitimacy whatsoever," he said. Fleener has been quoted saying the tribunals are a ..."wholly illegitimate process".

In his January 12, 2006 diary entry Human Rights First observer Avi Cover (link above) quoted Fleener: "For four years they wouldn't let detainees have lawyers; now they're shoving one down his throat."

Defense lawyers have questioned whether another rule violated Bush's order by changing the role of the presiding officer. The president's order said tribunal members would all serve as triers of law and fact, giving each of the four to seven panel members a dual role as judge and juror.

Subsequent Pentagon rules made the presiding officer the authority to decide legal issues, making him the judge. The presiding officers have had 3 pretrial hearings at Guantanamo since January without the other tribunal members present. Defense lawyers have questioned whether these constituted proper hearings.

The U.S. Supreme Court heard a challenge to their legitimacy last month and is expected to rule by the end of June on whether the trials can proceed.

After 4 years detention only 10 of the 500 Guantanamo detainees "the worst of the worst" have been charged with conspiring to commit terrorism and four had pretrial hearings this week at the base. The defendants would face life in prison if convicted.

White House press secretary Scott McClellan brushed aside rising condemnations of the brutal force-feeding of hunger strikers:

"We know that these are dangerous terrorists being kept at Guantánamo Bay. They are people determined to harm innocent civilians."

Seton Hall (New Jersey) School of Law produced a report entitled "Report on Guantánamo Detainees," it profiles 517 of the prisoners at Gitmo entirely based on "analysis of Department of Defense data." (Village Voice) Nat Hentoff report.

"Only 5 % of the detainees were captured by United States forces. [A total of] 86 % of the detainees were arrested by either Pakistan or the Northern Alliance and turned over to United States custody. This 86 percent of the detainees captured by Pakistan or the Northern Alliance were turned over to the United States at a time at which the United States offered large bounties for capture of suspected enemies."

"These are people who would gnaw through hydraulic lines at the back of a C-17 to bring it down," Gen. Richard B. Myers, chairman of the Joint Chiefs of Staff, said as the first 20 shackled prisoners arrived in Cuba on Jan. 11, 2002.