Two First-Hand Reports from Guantanamo Bay

(The following is a sketch for a piece written by Maia Goodell, who was one of five non-government observers at the pre-trial hearing of Mohammed Kamin, an Afghan who has been charged with material support to terrorism and is being held in the Guantanamo Bay detention camps.)

On November 18, 2009, at 9:00 a.m., the Military Commissions Trial Judiciary held a pre-trial hearing for Mohamed Kamin, who has been held in U.S. custody since 2003. In April 2008, the Military Commissions’ Convening Authority, the Honorable Susan Crawford, referred a charge against Kamin for material support to terrorism. According to the government, Kamin conducted surveillance, planted explosives, and launched missiles against U.S. Military forces in Afghanistan.

Kamin is one of over 200 detainees still being held in Guantanamo; he is one of only __ who have been charged.

I was one of five non-governmental organization observers invited to be present and observe the proceedings. A single military judge presided; two government and two defense lawyers, all military officers, argued various motions. Two rows of spectators were sparsely populated: Kamin, not being one of the more notorious prisoners, had motivated few reporters to make the 4-day trek for a two-hour hearing on discovery motions.


An Absent Defendant

A distinctive aspect of Kamin’s case, reported by prior observers, is his refusal to attend any of the proceedings. Once again he was not present; Assistant Staff Judge Advocate for the Joint Task Force - Guantanamo (“JTF”), Keleigh Biggins, whose job is to be the primary point of contact for both prosecution and defense counsel for the commissions, took the stand at the center of the courtroom to testify that she went to Kamin’s cell to inform him of his right to attend the hearing. According to her testimony, he was lying on the bed; he told her through an interpreter that he was aware of the court hearing but didn’t want to go, and that he already knew what the statement of his rights said and didn’t want to hear it again. She read it anyway through the interpreter, and said he responded by putting in earplugs and pulling his blanket over his head. When she was done, he made a “shooing” gesture. She testified without objection that it was her opinion he understood his rights.

Defense counsel also questioned Biggins about the defense motion to move Kamin to a different detention block on Guantanamo. According to defense counsel, prior government statements indicate the government is aware that there is pressure to display “solidarity” in Kamin’s cell block, by refusing to participate. Defense counsel asked for him to be moved to another location where "compliant" detainees are housed.

Defense counsel had made this request on November 2 and asked for a response by November 4. Biggins responded by saying the government was considering the request. Questioned on the stand about the delay, she explained that the official she normally communicated with had been “off island” until the day before. Was he the one who had to make the decision? No, his supervisor did. Defense counsel asked the court to order JTF to provide a response -- one way or the other.

The government responded that no order was necessary; a response was forthcoming. They just had to consider a number of factors to consider whether the transfer “When?”, asked the judge. “Hopefully soon.”

That, said the judge, has been the “mantra” in this case from the government -- “it’s in the mail.” A mantra, said the judge, that the government has repeated for the duration of the proceeding – it's on it's way, but it never arrives. After a recess, the judge ordered the government to respond to the request by December 8.

Ultimately, the judge determined that Kamin was aware of his rights and the proceeding could advance, but stated that he had asked defense counsel, who apparently now have some limited communication with Kamin, to advise him that there would come a time when Kamin would be required to be present, voluntarily or not.

An Unclear Future

As of the date of the hearing, Kamin was charged only with “material support for terrorism.” The judge noted at the outset that, at a non-public conference the day before, the government had confirmed that it was plotting new charges against Kamin, which would be sworn and submitted to the Convening Authority by Friday.

Defense counsel opened by noting that the government had received 300 days of successive stays in the case, expiring on November 16, the Friday prior to this Wednesday’s hearing. That day was also, of course, the day that the Obama Administration had announced that it would make a final decision on whether to continue to prosecute the cases currently charged in the military commissions in Guantanamo. When that decision was announced, however, it included only about eleven of the thirty cases pending. Defense counsel -- and the judge -- said they were surprised at not having a resolution for Kamin. The government lawyer said that the inter-agency Department of Defense-Department of Justice task force recommended Kamin’s case proceed under the military commissions rubric, but that the Department of Defense had not yet made a final decision -- other than to give him authority to proceed with today’s hearing.

As an example that seemed to be raised mostly for show, the Military Commissions Act of 2009 now gives the commission jurisdiction over any “alien unprivileged enemy belligerent.” Kamin, the defense argued, was charged under the old Act, as an “unlawful enemy combatant.” Defense counsel brought a new motion under Rule 907(b)(1) arguing that the charges thus failed to allege jurisdiction. The government protested that it was unprepared to argue this issue, and the judge ordered briefs from both sides.

Non-disclosure of Statements of the Accused

Defense next argued a motion to compel disclosure of statements the accused had made. The government, defense counsel noted, had turned over 2000 pages of discovery two weeks before a prior hearing in July; that discovery included the interrogation log for Kamin. By matching the log dates on which interrogations were recorded with the intelligence reports of Kamin’s statements that had been provided, the defense said it had identified seventeen dates for which an interrogation was recorded but it had no report. This, said the defense, vindicated the argument it had been making since December 2008, that the government was not turning over the statements of the accused. The government, given these seventeen instance on October 26, had made no response. Trial counsel responded that the government had found three reports that would be “promptly” provided, and had determined that five of the dates reflected interviews that JTF had not conducted. They were still looking to the rest.

The judge, noting that the charges had been referred in April 2008, expressed frustration with the continued response, “We’re looking into it.” He ruled that by December 15, the government must provide either Kamin’s statement or a detailed explanation of why it was not available for every one of the seventeen dates identified by the defense. Otherwise, the judge warned, sanctions -- including not allowing reliance on the statement -- would be considered.

Prosecution Unprepared to Argue Unscheduled Discovery Motion

The defense then attempted to raise a discovery motion that had been filed concerning unlawful command influence. Trial counsel protested that the motion was “not on the docketing order” and that the government was not prepared to argue it. Given that trial counsel was new, the judge said, he accepted this position and declined to consider the motion.

Discovery of Opinion Memos About Validity of Material Support for Terrorism Charge

Defense counsel next asked for discovery of government memoranda of opinion about whether material support for terrorism is a charge that reflects a traditional violation of the law of war and thus properly prosecutable by a military commission. Narrowing the written request, defense limited the relief sought to memos by the Department of Justice Office of Legal Counsel and Department of Defense General Counsel, which, defense counsel argued, would be binding on the Convening Authority. This would allow the defense, averred counsel, to have a more meaningful exchange with the Convening Authority when they renewed their request to drop the prosecution.

Relying on congressional testimony by administration officials that prosecuting material support for terrorism in the military commissions would probably not survive constitutional review, defense counsel argued that the existence of such memos was likely The government, and the judge, however, noted that since that time Congress had passed, and the President had signed into law, a statute making material support for terrorism one of the offenses that was within the military commission’s purview. Defense counsel responded that the Supreme Court in Chada had specifically ruled that a president can sign a multi-provisional statute while recognizing that parts of it were unconstitutional -- particularly likely here, where the statue was the very large National Defense Authorization Act.

The government characterized the debate about whether material support for terrorism was a charge that was legally cognizable by the military commission as “unimportant and irrelevant to Mr. Kamin’s guilt or innocence.” It noted that the defense had already made two motions to the court and to the Convening Authority. The Convening Authority had stated she was aware of and would follow her obligations and there was no reason to believe that was not the case. Defense counsel, however, noted that the Convening Authority, unlike the court, had to consider the expenditure of resources in deciding whether to continue to prosecute the case. While making no ruling the judge appeared sympathetic to the government’s perspective, noting repeatedly that testimony concerning pending legislation had little weight after that legislation was passed and signed into law, without direction to refrain from enforcing it. Oddly, the government only made reference to attorney-client privilege and work product protection in passing, arguing that even if one “set aside” those considerations, the motion should fail.

Notice to Defense Counsel if Defendant is Transferred

Defense next argued that it was entitled to fourteen days’ notice if the government intended to transfer Kamin, to allow counsel to meet their ethical obligation to assist Kamin in any way possible, and particularly to arrange for travel to be at the new location when Kamin arrived. The government argued that there was nothing defense counsel could do with the information because it would be condition that it not be disclosed to Kamin, that trial counsel was unlikely to have fourteen days’ notice, and that defense counsel should be able to arrange for travel in a much shorter time. The judge did not rule.

Discovery of Witnesses

Defense made two motions concerning witnesses. The first, resolved at a closed-door conference between the judge and counsel pursuant to Rule 802, concerned a military witness who was not responding to defense requests to speak with the witness. The government agreed to direct the witness to contact defense counsel for an interview within ten days.

The second concerned discovery of contact information for two witnesses in Afghanistan involved in the initial detention of Kamin. According to the defense, Kamin was captured by U.S. forces, then transferred to Afghan forces for a short period -- perhaps, defense suggested, to “soften him up” -- then returned to U.S. custody. The defense claimed the witnesses had knowledge of interrogations during that period of Afghan custody, which might taint future statements made to U.S. interrogators.

Further, defense counsel argued, the government could not claim that it could not locate the witnesses given that the United States occupies Afghanistan and the government therefore has “actual and effective control” over most institutions in Afghanistan.

The government disagreed with the defense’s recitation of the sequence of events surrounding Kamin’s capture. Trial counsel said that Kamin had been captured by US and Afghan forces, then released, then brought back to the US forces when evidence was discovered. Thus, no interrogation was conducted outside the presence of US forces. However, the government did not deny that the two witnesses’ involvement was discoverable; it just couldn't find them. The judge questioned how actively the government was looking, and trial counsel stated their investigator was actively seeking out leads, and that the information would be provided to the defense if the government learned it – provided immediately, he added on the judge’s prompt.

Defense counsel countered that if the witnesses still could not be found, the government should suffer sanctions because it was the government that had delayed five years in referring charges, so it should suffer the consequences of the delay.

Trial Schedule

The judge set the following schedule:

December 2 - deadline for submission of law motions
December 9 - responses due
Week of December 16 - hearing to resolve all pending issues, including law motions

Defense counsel noted that the continued uncertainty in the procedure, including the conceded pending revision of the manual governing the commissions, made further delay inevitable in a case in which the accused had already been held more than six years. Defense was put in the position of needing a continuance of the proceedings because they did not know what the rules were going to be; however, the delay was already extreme and not the defendant‘s fault. Therefore, he said, defense would be asking the court to consider abatement of the proceedings as a remedy. The government, and the judge, were of the view that the proceedings could continue under the current rules, subject to reconsideration if something changed.

Apparently, therefore, Kamin’s case is headed for a military commission trial within a few months, unless the government changes course. Whether that will be in Guantanamo or at a new location within the U.S. remains unclear, particularly in light of President Obama’s statement that Guantanamo may remain open into the next year.

(Here is a link to an article written for the Huffington Post by one of the other civilian observers: http://www.huffingtonpost.com/stephen-paul-smith/the-forgotten-defendant-o_b_363019.html)