The Circle of Life [insert Elton John's song]: the Due Process of the Hybrid Guantanamo Bay Detainees

Yes, I decided to do a second blog today because I came across a couple articles that dove-tail off of some of my previous posts and add to what I said in the past. The article attached to this post can be put in my “Gitmo” series, as the trial of the U.S. detainees remains to be a key issue to be discussed in the rules of war of the Bush Administration. It has been said so many times before and I don’t feel like repeating it, but the detainees are effectively a third type of person-held-during-war-or-some-other-type-of-near-war, not to be confused with “prisoner of war”. These detainees are a hybrid: afforded basically none of the protections under prisoner of war status, and almost no effort to follow due process.

To be honest, I’m not really afraid of what the detainees will do when they get out of Gitmo, although I’m sure this experience would make them more radical. I am afraid of what their stories will do as a propaganda tool for terrorist/radical groups and people as well as tarnishing the U.S. reputation for due process. Similar to Bush’s claims that history will judge his presidency, Ahmed Darbi says, “History will record these trials as a scandal.” When Bush has made his claim, I have tried to contemplate a future in which the history book authors would view Bush in a positive light. I am not a huge Bush fan, but yes, I could possibly see this happening, but I think it is highly unlikely. Darbi’s prediction is much easier to envision because one does not have to look far into the future to see his statement coming true. In fact, there are plenty of authors in present day that view the detainee trials as a sham. Hopefully these trials can be resolved in the near future, but from the tone of the article below, the probability is low.

Saudi terror suspect: Military trials a 'sham'

Carol Rosenberg, Miami Herald.com, 9 April 2008

A Saudi captive called the war court here a sham at his hearing Wednesday, fired his Pentagon defense lawyer and was sent back to his prison camp cell with a promise from his military judge that his terror trial would go on without him.

"History will record these trials as a scandal," said Ahmed Darbi, the brother-in-law of a member of the suicide squad that struck the Pentagon on Sept. 11, 2001. "I advise you as a judge and all the people here to not continue this play, this sham." Darbi, 33, is charged as an al Qaeda conspirator and with providing material support for terror -- not in the 911 attacks, but on an unsuccessful plot to bomb vessels off the coast of Yemen between 2000 and 2002.

He is the fifth Guantánamo captive to be arraigned at a military commission and the second to refuse to cooperate with the first U.S. war crimes tribunal since World War II. A month ago, prison camp guards forced Afghan Mohammed Jawad out of his cell and into the commissions, where the man captured at age 17 declared his intention to boycott. "You will not be forced to be present. Do you understand that?" the judge, Army Col. James Pohl, told Darbi.

The court went silent for a few beats while the Saudi listened through his headset. "Yes," he replied. Then the judge advised, "If you are not present, the proceedings of the commission will happen in your absence." The captive had appeared for his two-hour session in the clean, white prison camp uniform of a cooperative captive and fingered his scraggly beard while listening attentively.

In measured tones, he repeatedly refused to participate in his upcoming military trial and refused his Pentagon's paid defense attorney, U.S. Army Lt. Col. Bryan Broyles. He asked for a Saudi lawyer. "To be honest, I consider my presence here at these commissions and presence of others here to be a crime against the law, a crime against divine justice and any earthly justice." The judge said he would keep Broyles on the case, as defense counsel, unless Darbi decided to participate and designated another approved lawyer.

Under the Military Commissions Act that set up the terror trials in 2006, only U.S. citizens can defend war court defendants. They are assigned military lawyers or judge advocates general, who can bring along civilian lawyers at no government cost. Foreign lawyers can act as consultants.

Broyles, in turn, said he would check with the Army and Kentucky bars on his ethical obligation to defend a client who had fundamentally fired him.

Darbi has repeatedly claimed torture in U.S. custody and particularly brutal treatment at the U.S. detention center in Bagram, Afghanistan. His testimony, via a sworn statement taken here, was admitted to the Texas court martial of a former Army guard who was charged with assaulting and mistreating detainees in Bagram but ultimately acquitted.

Darbi does not trust the system, said Broyles.

Asked whether his client thought he was being unfairly treated because his brother-in-law was Khalid al Mihdhar, one of the hijackers who crashed American Flight 77 into the Pentagon, Broyles replied: "If he doesn't think that, he'd be crazy. I think that." Darbi was captured at an airport in Azerbaijan and eventually turned over to U.S. forces, who transferred him first to Bagram and then to the remote prison camps here.

His charge sheets describe an ill-fated plot to drive a small explosive laden boat into a ship in the Strait of Hormuz.

The morning proceedings, Darbi's second appearance at the court, were fraught with translation problems. At one point, a a government translator referred in Arabic to the Army defense lawyer as "Lieutenant Darbi," At another point, the translation from Darbi's Arabic to English -- heard in the courtroom -- had him calling the session a "crime against humanity." Arabic speakers said he had not uttered the expression.

Broyles said his client had protested the court as a "human rights violation," and said his Pentagon paid translator would review an Arabic tape of the proceedings to correct the official transcript.

Also, perhaps signaling coming issues on the evidence phase of pretrial proceedings, the judge told U.S. government prosecutors that they could respond three ways on whether requested information actually exists -- yes, no or "neither confirm nor deny." The third option effectively means the evidence is classified secret or sensitive.

In doing so, Pohl was borrowing from a federal court standard called the "Glomar Response," in which the CIA refused to confirm or deny its relationship to a Howard Hughes ship, The Glomar Explorer, because any answer would compromise national security.

Darbi's next court hearing is May 21, a motions session on legal issues raised by the case.

War court sessions resume Thursday afternoon, with the arraignment of a Sudanese captive, Ibrahim Qosi, formerly charged as an al Qaeda payroll clerk who now accused of working as a driver and bodyguard for Osama bin Laden.

Then Friday, the military has scheduled a hearing in the case of Canadian Omar Khadr, who is accused of committing terror and murder as a 15-year-old in the grenade killing of a U.S. Army sergeant during a firefight at an alleged al Qaeda safehouse in Afghanistan.

The judge on the case, Army Col. Peter Brownback, has yet to rule on a motion by the Toronto-born Khadr's Pentagon lawyers that their client's case be treated as that of a "child soldier." Khadr, now 21, was sent to the prison camps here after his 16th birthday and has grown into 6-foot-2 adulthood behind the razor war of Guantánamo Bay.

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