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Gitmo Through NGO Eyes

Posted By Cully Stimson On July 8, 2010 @ 4:27 pm In Legal | Comments Disabled

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GUANTANAMO BAY, CUBA – I was privileged to be one of six representatives of non-governmental organizations (NGOs) invited by the Office of Military Commissions to observe the guilty plea of Ibrahim al Qosi here in Guantanamo Bay, Cuba, yesterday. The other invitees were the ACLU, Human Rights First, Human Rights Watch, Amnesty International, and the National Institute of Military Justice (NIMJ).

Each of those organizations have been highly critical of military commissions, denouncing them as unfair, unjust, unnecessary, not in keeping with the rule of law, and not fair compared to courts-martial or our federal courts.

For years, especially including when I was Deputy Assistant Secretary of Defense for Detainee Affairs (2006–2007), I was aware of and read the complaints of these human rights organizations regarding detention and interrogation policy and the use of military commissions. I had assumed all along that those representatives who had attended military commissions’ hearings over the years, and then spoken out harshly against them, had some background in the law and specific experience in military law—or at the least federal law, evidence, and criminal procedure.

At least with respect to this military commission’s case, on this particular trip, I was wrong.

None of the human rights observers whom I have had the pleasure of getting to know in the past few days here in Guantanamo—each of whom are personally pleasant and were kind and friendly to me—has ever practiced criminal law, either as a prosecutor or a defense attorney. Only one of the four representatives (Amnesty International did not show up) had a law degree, and that was from a foreign law school.

More importantly, none had witnessed a single, regular court-martial.

They had no familiarity with court-martial procedure, military criminal procedure, military evidence, or even how a standard guilty plea takes place in a court-martial. So when al Qosi pleaded guilty yesterday, for half of the NGOs present, it was the first guilty plea they had ever seen—in any court.

When the military commission’s judge announced that the sentence limitation portion of the pre-trial agreement would be kept under seal (so as not to improperly influence the jury, which would hear the sentencing case a month henceforth), that came as no surprise to me or anyone else who has worked in and around regular courts-martial for our entire careers. That is standard operating procedure in courts-martial. Yet the immediate reaction of my new friends in the NGO community who attended the proceeding was that something sneaky was going on. Some commented that it was just another example of a lack of legitimacy and transparency in the commissions’ process, when in fact it was just a normal procedure that happens in courts-martial all the time.

There are, to be sure, a few experienced criminal practitioners (ex-prosecutors and/or criminal defense counsel) at the aforementioned NGOs. For example, Gene Fidell, who helps run the NIMJ, is an experienced and respected military practitioner. Yet Gene was not here yesterday, nor was any NGO with any criminal trial experience.

The Military Commissions Act of 2009 is based, almost exclusively, on the Manual for Courts Martial, the Uniform Code of Military Justice, and the Military Rules of Evidence. The script used by the military commission’s judge is almost identical to the script used by regular courts-martial judges.

The guilty plea that took place yesterday here at Gitmo, while historic, looked and sounded like and was virtually identical to any other guilty plea that took place across the globe in U.S. courts-martial yesterday, except for one thing: The accused was an unprivileged belligerent, and he admitted to providing material support for terrorism and conspiracy to providing the same.


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