BY ANDREW KALLOCH
An observer of the military commissions at Guantanamo Bay, Cuba (GTMO) has found that prosecutorial discretion is virtually non-existent, the discovery system is broken, translation services are a sham, and lawyering is spotty. Anthony Barkow ’95, a former Assistant U.S. Attorney who specialized in organized crime and terrorism in the Southern District of New York, spoke of his observations of the military commissions at GTMO on Thursday, October 30 in an event sponsored by the National Security and Law Association.
Barkow, who is perhaps best known for prosecuting defense attorney Lynne Stewart for conspiracy and material support of terrorism, is now the executive director of NYU Law School’s Center on the Administration of Criminal Law, which focuses its study on the exercise of prosecutorial discretion. Barkow was able to observe, first-hand, the military commissions at GTMO, which are closed to all but four human rights organizations and persons with specified press credentials.
Barkow described the discovery system at GTMO as unwieldy at best and non-existent at worst. “While I was there, one prosecutor resigned publically because of the endemic problems of finding, analyzing, and providing discovery to defendants.” Because much of the information relevant to the charges brought by the government is either classified or unable to be located by military lawyers at GTMO, it cannot be reviewed or properly disclosed to the defendant. In one case, Barkow stated, there was an intelligence report and a confession by another detainee which both exculpated the defendant, but which were not disclosed because the documentation was not available to the prosecutor at the time of trial.
This discovery regime differs dramatically from the system at use in federal court within the U.S., in which the Department of Justice is either granted access to classified information or the case is dismissed. “The government has to declassify information in national security cases in order to make the case and fulfill its discovery obligations,” Barkow said. In Lynne Stewart’s case, for example, 95% of evidence was classified material acquired via the Foreign Intelligence Surveillance Act (FISA). Nevertheless, the government released 95,000 intercepts to the defense and used 300 at trial.
Another major problem at GTMO is translation services. Unlike translators in federal courts, who must be certified as having the requisite skill needed to translate with near 100% accuracy in real-time, no such certification procedure exists for the military commissions at GTMO.
In the 9/11 case, a death penalty proceeding, Barkow noted how the defendants constantly raised their hands to express their inability to understand the proceedings. In a moment of tragic comedy, Barkow noted two translations: “top private” instead of top secret, and, “In the beginning of the timing of the laws, I said there was no difficulties.” The translation was so bad that defendants even started correcting the court interpreters, according to Barkow.
A third problem with the TMO proceedings is the lack of public access. Indeed, there is no access for the families of victims or defendants. Even Barkow had to face a gauntlet of challenges to attend the hearings. He took a small turboprop plane that took three hours to get to Cuba from Fort Lauderdale and proceeded to spend the night in tents on abandoned airstrip. Barkow, along with other interested parties, cannot follow the proceedings in a systematic manner because there are no docket sheets about what has been filed and no formal clerks office to get opinions. “Neither can the media, and neither can the American public or the world,” he opined.
Another aspect of the commissions that bars public access is the 30-40 second tape delay that accompanies the proceedings. Observers are located behind a glass window and thus can only hear what the Central Intelligence Agency will permit them to hear. For example, in the case of 9/11 mastermind Khalid Sheikh Mohammad, the CIA officer responsible for administering the ad-hoc classification system shut off the tape for 5 minutes. As a result, Barkow declared, that testimony “went into a black hole and we will never know what happened.” Ironically, Barkow noted, the CIA did not limit testimony from Mohammed about him being water boarded. While the CIA has stated that the tape is only turned off when classified information or private material (such as medication) is discussed, Navy Cmdr. Suzanne Lachelier, Mohammed’s defense attorney, told the Associated Press that the tape was turned off when Mohammed was discussing his five years as a prisoner of the United States.
Barkow completed his discussion of GTMO by assessing the military commissions through one of its most notorious cases. Mohammad Jawad was accused of throwing a grenade at a US Army vehicle in Afghanistan in 2002 when he was 16 years old. Jawad’s case was brought before the military commission despite the fact that the evidentiary record was riddled with unreliable evidence. Barkow said the entire case against Jawad consists of the testimony of Afghan police, who have a worldwide reputation for corruption, including turning over certain suspects for bounty, and a confession written in a language that Jawad did not understand with his thumbprint on it.
When Americans interrogated Jawad, he admitted throwing the grenade, but insisted he had been drugged. Jawad’s account was corroborated by a U.S. intelligence report that showed that the group Jawad has said he was taken in by has a history of drugging and sexually abusing young boys and then forcing the boys to commit acts of terrorism.
Moreover, last week the statement from the Afghan police was thrown out because it was a product of torture. In rejecting the testimony, the judge repudiated the infamous definition of torture promulgated by the Bybee Memo in 2002, which narrowly defined torture to the equivalent of “serious physical injury, such as organ failure, impairment of bodily function, or even death.” Barkow concluded, “If this is one of the five best cases at GTMO, that tells you something about the rest”.
Barkow did mention one bright spot regarding the military commissions: the quality of the judging. He noted that the judges at GTMO had issued significant rulings in favor of the defense in recent weeks, such as the ruling that mere status as an enemy combatant does not, by itself, constitute a violation of the laws of war. “I was impressed by the way they treated defendants and their professionalism on the bench.”
Barkow spoke briefly on his involvement in the Stewart case as well. He asserted that Sheikh Omar Abdel-Rahman, the blind Egyptian cleric who was convicted in 1996 of plotting terrorist attacks against bridges and tunnels in New York City, was cut off from the outside world for the purpose of limiting the guidance he had provided as spiritual leader of “The Islamic Group.” As leader of that jihadist organization, Rahman was responsible for issuing fatwa encouraging violence in the U.S.
Barkow stated that Stewart, by acting as Rahman’s mouthpiece, had provided material support by enabling the blind cleric to communicate with his followers. Indeed, Barkow claimed that Stewart endangered American lives at home and abroad by publically announcing Rahman’s withdrawal of support for the ceasefire The Islamic Group had entered into after the November 17, 1997 massacre of fifty-nine foreign tourists and four Egyptians at Luxor. Rifai Taha, who Barkow noted was a close associate of Osama Bin Laden, had sought out Rahman’s support for continued violence, knowing that his ability to bring the Group back to its violent roots was dependent on getting permission from Rahman.
While no terrorist attacks occurred after Stewart’s announcement of Rahman’s support for discontinuing the cease fire, there were some militants on the ground in Egypt planning an attack, including Alaa Atia, who had been convinced
to join in violent jihad by Rahman’s blessing.