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Trials and Errors at Guantanamo

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Times Staff Writer

Nuremberg it was not.

Unlike the Nazi war crimes trials, which were conducted by seasoned legal specialists with the world looking over their shoulders, the opening round of the tribunals at Guantanamo Bay naval base last week seemed mired in uncertainty, inexperience and confusion.

As one session ended, the presiding officer appeared to be so blindsided by a defense maneuver that he sat with his face in his hands before issuing a ruling.

Repeatedly, the translation system broke down.

At one point, a defendant unexpectedly fired his court-appointed lawyer and began to blurt out a confession before officials could bring the situation under control.

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And the outside world got only glimpses of the proceedings, which were carried out under such tight restrictions that no photographic, video or audio records of what went on are ever to be released.

After four days, the few international observers allowed to attend threw up their hands in disbelief and declared the system “fatally flawed.”

“There were times when I actually had to think to myself, ‘They’re actually planning on prosecuting people in this forum,’ ” Jamana Musa of Amnesty International said. “It was mind-boggling.”

Army Col. David McWilliams, chief spokesman for the commission, said the week proved that the panel’s proceedings were “rounded but needed to be refined.”

The Nuremberg Tribunals, which convened in Germany on Nov. 20, 1945, were conducted under the auspices of the United States, France, Britain and the Soviet Union.

As that tribunal opened, records show, the presiding officer noted that a copy of the indictment had been furnished to each defendant in German, that all the defendants had counsel -- in almost all cases, counsel of the defendants’ own choosing -- and that the prosecutors had made available to “defending counsel the numerous documents upon which the prosecution rely, with the aim of giving to the defendants every possibility for a just defense.”

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The proceedings last week against four accused members of Al Qaeda taken into custody in Afghanistan employed a military commission, or tribunal, system not used for more than 50 years.

The commission system was used in a few cases during World War II, notably against a group of Nazi saboteurs captured on the East Coast, and had been abandoned until President Bush revived it to prosecute terrorist suspects after the war in Afghanistan.

As a result, the five-member panel of military officers convened for the first trials last week had few precedents to follow and often seemed uncertain what rules or legal procedure should be followed.

On Thursday, defendant Ali Hamza Ahamad Sulayman al Bahlul refused his military lawyers’ aid and got halfway through what appeared to be a confession before the presiding officer cut him off. Army Col. Peter Brownback III appeared to have been caught off guard by the defendant’s action and told his four fellow commission members serving as judges to disregard the statement.

“People of the entire globe, know that I testify that the American government put me under no pressure. I am from Al Qaeda and the relationship between me and Sept. 11th ...” Bahlul said, before Brownback stopped him.

Earlier, questioning of the lone alternate member of the commission highlighted the limited legal backgrounds of panel members.

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A defense attorney, Navy Cmdr. Charles Swift, asked the alternate if he understood the primary source of international law.

“Do you know what the Geneva Convention is, sir?” Swift asked.

“Not specifically. No, sir,” Lt. Col. Curt S. Cooper answered. “And that’s being honest.”

That incident and others led observers from nongovernmental organizations to call for an all-lawyer panel.

“We’ve asked five very able commission members, who have essentially no legal training, to decide complex questions of constitutional and international law,” said Deborah N. Pearlstein, an observer with Human Rights First.

“And they are struggling with the definition of ‘jurisdiction,’ of ‘due process.’ Those terms are so basic. It calls the credibility of the entire process into question when we don’t even have a baseline to start.”

Commission spokesman McWilliams acknowledged some of the problems: “Not only are we using a form of tribunal that hasn’t been used since World War II, we’re also holding these proceedings in an isolated location.

“We need to ensure we’re comfortable with translation, but I think the legal process did exactly what it needed to do. It allowed for zealous defense under public scrutiny.”

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That scrutiny had its limits.

On the orders of retired Maj. Gen. John Altenburg, who has authority over the commissions, fewer than 100 people witnessed each session.

In addition, no one outside the courtroom and neighboring viewing room is ever to see or hear the proceedings.

The trials were not televised, broadcast or photographed. No Nuremberg-like images of alleged war criminals were recorded.

Five human rights workers and 54 journalists from 37 news organizations descended on this U.S.-occupied sliver of Cuba to witness the proceedings. But they had to write fast.

Reporters were allowed only pen and pad. Video cameras carried the courtroom scenes to the viewing room, but no recording was made, officials said.

Only a written transcript is to be kept, and an audio recording for court reporters, undisclosed until a dispute over translation erupted Thursday, will never be released to the public, McWilliams told reporters.

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With the fledgling commission struggling to establish its own precedents on the fly each day, many questions were referred to Washington. For example, Altenburg will now decide whether Bahlul can represent himself, as well as what to do about a request to alter the rules so that one defendant can hire a Yemeni lawyer.

Legal experts said there could be significant delays while that happens.

“It does sound to me that there was a severe lack of preparation,” said Eugene R. Fidell, president of the National Institute of Military Justice, a nonprofit organization of lawyers who participate in military trials. “There was less familiarity with the details of the governing regulations than I would have thought.”

Under Bush’s executive order creating the commissions, Altenburg must also decide on any efforts to unseat panel members on grounds of conflict of interest. Lawyers for the first two defendants -- Australian David Hicks and Salim Ahmed Hamdan of Yemen -- challenged the fitness of four of the five panel members and one alternate.

Defense lawyers argued that two commissioners who had served military tours in Afghanistan were too closely linked to the war there, and to the Sept. 11 attacks, to be impartial.

Hicks’ lead attorney, New York criminal lawyer Joshua Dratel, previewed an additional motion to get the entire panel thrown out for its lack of legal expertise.

That argument might be a tough sell with Altenburg, who had appointed all the panel members. Defense lawyers also have questioned his friendship with presiding officer Brownback.

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Asked how Altenburg could reconsider his own decision, the chief Pentagon legal officer for the commissions, Air Force Brig. Gen. Thomas L. Hemingway, said he might see new information.

“You have to understand that the information that was disclosed during the course of the proceedings may be in addition to and contrary to the information that the appointing authority had available when the people were selected,” Hemingway said.

“Certainly [the fact] that the individual served in a combat zone, I would not consider necessarily to be disqualifying.”

For historians -- and aficionados of courtroom drama -- the secrecy entails a significant loss.

There were some electrifying exchanges during the week, such as when two defense lawyers took the rare step of cross-examining the panel’s equivalent of a judge, then told him they would seek to remove him, along with three of the four other panel members and the lone alternate member.

And, after allowing Brownback to close the first day of hearings, defense attorney . Swift rose to ask one more question.

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Having said that he planned to file a motion to remove Brownback because the presiding officer allegedly had told a group of other defense attorneys that speedy trials were not an issue at Guantanamo, Swift said he had a tape of the exchange and wondered whether Brownback would send it to Altenburg.

After 70 seconds of silence with his head sometimes buried in his hands, Brownback said he would, “although the tape was made without my consent.”

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