Gitmo Déjà Vu: Different Cases, Same Problems #InadequateRepresentation

In the last five months, I’ve observed proceedings in all three of the cases before the military commissions at Guantanamo Bay. In May, Hadi al Iraqi—alleged former senior al Qaeda leader. In July, Khalid Sheikh Mohammed and his four alleged co-conspirators in the September 11^th case. And last week, I was there to watch proceedings resume in the pre-trial motions for Abd al Rahim al Nashiri, the accused mastermind of the USS Cole bombing.

Though each case is unique, as the al Nashiri proceedings wrapped up on Friday I experienced some déjà vu. In all three cases, the same issue keeps coming up: inadequate representation of the defendant.

In the case of al Nashiri, this problem surfaced two different times. First, lead defense counsel Rick Kammen pointed out that he and his team were wildly understaffed—al Nashiri only has two lawyers, which is almost unheard of in a high-profile capital case. He said two additional defense counsel had been detailed over a year ago, but cannot yet contribute because their security clearances haven’t been approved.

Second, there is the inherent issue of assigning military attorneys to represent the defendant. Defense lawyers in the Guantanamo cases serve a standard tour of duty that ends after two or three years, at which point they are transferred somewhere else. This wouldn’t be an issue in a case that only took six months to a year to resolve. But these cases have been going on for years and haven’t even gone to trial yet, and may take many more years after that.

As the defense argued, the attorney-client relationship is critical in a capital case, particularly when the defendant has been tortured like al Nashiri has. He understandably has difficulty trusting U.S. officials. The constant turnover of military counsel not only hurts the client, but also the institutional knowledge of the defense team, causing unnecessary delays.

In July Jim Harrington, lead counsel for 9/11 defendant Ramzi bin al Shibh, noted that a military counsel would be leaving their team and that his replacement was selected  months ago, but they are still waiting on a security clearance. And Michael Schwartz, counsel for Walid bin Attash (another 9/11 defendant), began his work on the case as a military counsel, but resigned his position in order to stay on when the military said his time was up. Still, bin Attash continues to try to fire both Schwartz and lead counsel Cheryl Bormann, as he believes they are working with the U.S. government against him.

In the al Iraqi proceedings in May, lead counsel Brent Rushforth said the team had identified four additional counsel they would like brought on, but they also have not yet received security clearances. In the cases of al Iraqi, al Nashiri, and bin Attash, the judges determined that the defendants were adequately represented.

The Military Commissions Act of 2009 provides that a defendant is entitled to one lead civilian counsel and one detailed military counsel. But consider that in high profile capital cases—think McVeigh, Moussaoui, Tsarnaev—the defendants certainly had more than two lawyers.

The adequacy of defense counsel in these cases could become an issue on appeal. But before we even get there, these recurring complaints about counsel are prolonging an already glacial process. Every time a military counsel has to leave a team, or a security clearance takes a year to process, another motion will be filed. It will take months to prepare for argument. Other issues will get pushed back. These cases will continue to drag on, and on, and on.

This would be a non-issue if these cases were being prosecuted in federal court. The defendants wouldn’t have military lawyers. Federal courts have established procedures for handling classified information and dealing with security clearance issues. In all likelihood, the defendants would’ve been tried, sentenced, and perhaps even through the appeals process by now.

However, given that current law prohibits any Guantanamo detainee from setting foot in the United States, this isn’t an option. Until it becomes one, I’ll resign myself to the fact that I’ll likely hear the same arguments the next time I go to Guantanamo.