Monday, July 12, 2010

Frustration, Boycotts, and the Arkansas Ethics Rules (Or, Just Another Day in the Life at Camp Justice)

Steve Vladeck

[To be cross-posted at]

What follows is my first-hand report on today’s proceedings here at Guantánamo in the military commission trial of Omar Khadr, a Canadian citizen captured in Afghanistan in the summer of 2002 at the age of 15, and charged with, among other things, throwing the grenade that killed Sergeant Christopher Speer. I came down here as observer for the National Institute of Military Justice—an NGO affiliated with my law school that was founded in 1991 to promote the fair administration of justice in the military system, and to educate the public, press, and Congress about the military justice system. Although I am here through NIMJ’s good graces, it should go without saying that what follows are my own views, and do not necessarily represent the position of NIMJ, its members, or its employees.

I had never been to Guantánamo before arriving yesterday. Notwithstanding my involvement at various stages in the Hamdan litigation and in various other cases involving non-citizens detained here, I had somehow managed to avoid this remote stretch of southeastern Cuba in my travels—for better or for worse. Now, after observing almost a full day’s worth of proceedings in Omar Khadr’s case (the big news from today’s events has already been broken elsewhere), I think it’s easy to see why everyone is so frustrated—the lawyers on both sides, the judge, the defendant, even the JTF personnel whose thankless job it is to deal with the dozens of people (like me) who converge upon the base from afar for each new round of hearings. Frustration comes cheap here at Camp Justice; progress is the priceless commodity.

Frustration is also at the heart of the current predicament in Khadr’s case. Although Khadr had largely been cooperating with his lawyers, that changed recently, for reasons that we can only speculate about (I won’t here). Thus, Khadr fired his civilian lawyers, and made representations to the court that he also wanted to rid himself of his detailed military lawyer, Lt. Col. Jon Jackson. The court initially took that as a motion to proceed pro se, and, ostensibly, that was the matter pending before the court when it convened this morning.

It quickly became apparent, though, that self-representation was but means to an end for Khadr—that his own frustration with the entire process had boiled over, and that he no longer wanted to participate (or have anyone actively participate on his behalf) in the commission. After reading a prepared statement (available here), and reiterating time and again that he believes the outcome of the trial is foreordained no matter what happens now or what arguments are made, Khadr got into a lengthy colloquy with the judge, Army Colonel Patrick Parrish, about his intentions. Parrish, who initially seemed inclined to allow Khadr to represent himself, only slowly came to realize that self-representation wasn’t Khadr’s real endgame, and that, if he allowed Khadr to represent himself, there would in fact be no defense. Suffice it to say, though, that it took the better part of separate 46-minute and 25-minute hearings this morning before this all became apparent, and I think there were at least two distinct points in the interim when Judge Parrish was prepared to rule to the contrary and allow Khadr to represent himself.

Of course, the Constitution does confer a qualified right upon defendants to represent themselves, but (1) that assumes that Khadr has Sixth Amendment rights, hardly a settled proposition; and (2) any such right is not absolute, and can be abridged, inter alia, in cases in which the defendant is mentally impaired from raising an effective defense.

Anyway, the question then became how the defense wished to proceed with its (still-) pending motion to suppress the various statements Khadr made to his interrogators, both here and after he was initially detained at Bagram. And that’s what precipitated the second recess, to allow Lt. Col. Jackson to confer with Khadr and figure out whether the defense would (1) withdraw the motion; (2) take no action (which would presumably mean the motion would be decided based purely on the existing record and any further argument by the government); or (3) call witnesses and present evidence in support of the motion. Related, there’s also the timing question. With the trial still scheduled for the week of August 9, and with no witnesses here to testify in conjunction with the suppression motion, each of these options carried consequences for what at times today seemed to the most frustrating problem of all—the calendar!

When things reconvened after lunch, Judge Parrish asked Khadr which of those options he wished to pursue, and Khadr, again, said he was “boycotting.” Perhaps it’s just me, but once Parrish decided that Jackson was still going to be Khadr’s lawyer, it seems that such a strategic question should have instead been directed to Jackson. Little matter, though, because Parrish immediately turned to Khadr’s military lawyer, who now finds himself in an awful bind. On the one hand, his client clearly wants him to do nothing at all (and doesn’t even like the idea that he is still Khadr’s lawyer). On the other hand, his ethical obligations as a lawyer may well compel him to act against his client’s wishes at least to some extent so long as he reasonably believes it to be in his client’s best interests. Different Guantánamo lawyers have handled this problem differently, and, in any event, state ethics rules may well vary. And if that weren’t enough, there’s Rule 109(b)(3)(A) of the hot-off-the-presses 2010 Manual for Military Commissions [I know, how’d I miss that one?], which provides that “In effecting a choice of law between the professional responsibility rules of a counsel’s licensing jurisdiction and the rules, regulations, and instructions applicable to trials by military commission, the latter shall be considered paramount, unless such consideration is expressly forbidden by the rules of a counsel’s licensing jurisdiction.”

It’s not as if these kinds of issues don’t arise in civilian courts; of course they do. Judges are faced all the time with recalcitrant defendants who want to represent themselves, or with lawyers who feel caught between their obligations to their client and to their bar. The difference, so far as I can tell, is that the civilian system has tradition and precedent, from which stability—if not legitimacy—naturally flows. Here, in contrast, there’s no law on virtually any subject, and so there are just too many independent variables, only so many of which can be controlled by the text of the Military Commissions Act or the Rules for Military Commissions.

So, Lt. Col. Jackson did what any reasonable lawyer in his situation would do: he punted, asking the court for time to consult with (and obtain an opinion from) professional responsibility experts in both the Army Judge Advocate General Corps and in the Arkansas bar. Not for the first time today (but perhaps the most vociferously), the prosecution objected to any further delay, suggesting that Khadr is manipulating the process, mocking the commission, and seeking only to further postpone the proceedings, never mind that Khadr himself said four or five times today that he wants the trial to be over as quickly as possible. Nonetheless, Judge Parrish decided to give Jackson until August 2 to hear back from the JAG and the Arkansas bar, and to leave untouched, for the moment, the trial date for the week of August 9, leaving aside the sheer impossibility of either resolving the ethical issue or, even assuming that goes quickly, disposing of the (fairly critical) suppression motion between now and then. [There are no available dates for all of the necessary parties to convene again here between now and August 9.]

And so, court finally adjourns for the day (week? month?) around 2:30 p.m., with the distinct sense that a whole lot of effort was expended by a number of people who mean really well, and nothing at all was accomplished.

Just another day in the life at Camp Justice.


Camp Justice? The use of a name like that indicates that the opposite is the case, as with the People's Republic of China and the former German Democratic Republic.

There is an interesting legal by-law in Kadr’s home country, Canada. Canadian Security and Intelligence Service officers interviewed Kadr in Guantanamo, several years ago after the prisoner had been sleep deprived and subjected to other intelligence softening by his American jailers. The Canadian agents’ apparent capitalization on American preparation of the witnesses was found to have violated their home country’s Charter of Rights. The finding has resulted in a blunt minuet between the courts and the government in Ottawa testing the limits of the court’s influence on government’s foreign policy conduct with the Americans.

Reorganizing a piece by writer Campbell Clark in the Toronto Globe and Mail today:

The [Canadian] Supreme Court ruled in January that the Canadian government had breached Mr. Khadr’s rights by taking part in his interrogations at Guantanamo Bay – officials from CSIS and the Foreign Affairs Department questioned him in 2004, knowing that he had been subjected to sleep deprivation.

But the Supreme Court left it up to [the]... government to decide how it would fix the breach of Mr. Khadr’s rights. Ottawa later sent a diplomatic note to the United States requesting that evidence gathered by Canadian interrogators not be used against Mr. Khadr, but it was ignored.


Last week, Mr. Justice Russell Zinn of the Federal Court of Canada gave the government seven days to come up with a list of ways to help protect Mr. Khadr’s rights...


Toronto lawyer Lorne Waldman, who represented the Canadian Bar Association in a previous round of the case before the Supreme Court of Canada, said some believe the United States might be willing to accept a Canadian intervention so that it could get rid of a messy case.

“The analysis of those people who want the government to seek repatriation is that the Obama administration would be glad to repatriate Omar Khadr as a way out of dealing with this very problematic case where there’s all these issues related to torture, et cetera, that they really don’t want to deal with,” Mr. Waldman said.

It is interesting to note that Professor Vladek’s post below on the continuing significance of the Guantanamo Bay habeas corpus litigation has not thus far attracted a single comment.

Henry is, of course, absolutely right when he points to the irony of this misbegotten tribunal and its deeply flawed rules of procedure being located in a facility misnamed “Camp Justice”.

But the Bush Department of Defense had a nice line in ironic titles. Think of ”Operation Enduring Freedom” as the overall name for the US GWOT operations – originally titled ”Operation Infinite Justice” until the penny finally dropped and some dimwit finally realised that such a name would be offensive to just about every Muslim in the world – since we believe that only the Deity can encompass infinite justice. Human justice is inevitably flawed and imperfect.

What has been interesting in what has been going on in Guantanamo is that, as I see it, teams of fundamentally decent military judges and JAG lawyers have been trying desperately to arrive at just outcomes in spite of rather than because of the rules of procedure and the abysmal state of the evidence.

But what is worrying is that it is not just the Omar Khadr trial which is bringing up outside the USA the issue of torture and the complicity personnel of other NATO countries in torture, inhuman and degrading treatment.

In the USA, the judicial system has been able to shrug off attempts to challenge such misconduct through its civil courts, but not so elsewhere. Canada already has had the case of Maher Arar.

The UK has the cases of its Guantanamo detainees, notably the Binyam Mohamed case. There is a criminal investigation under way into the complicity of our Security Services in US torture and civil claims for damages are under way. Our government is so concerned about the potential for embarrassing disclosures in such trials that it has recently announced a judicial inquiry into such complicity and offered the civil claimants the prospect of compensation if they agree to bring their litigation to a halt.

This is all very well, but the fact is that these experiences are going to make it immensely difficult for the UK or any other NATO country to participate in any other US-led “coalition of the willing”. It will impact on intelligence co-operation. Extradition arrangements with the USA are already under review.

Immense damage has already been done to the reputation of the USA world-wide. One gets the sense that the US military judges and JAG officers are only too well aware of this but that the present Administration is being lily-livered, is afraid of the potential backlash from the right if it were to do the right thing and is sacrificing justice on the altar of political expediency.

Yep. Torture has made us less safe. In the ways you outline, Mourad, and in other ways and in still other ways.

Sure, torture is wrong, illegal, doesn't work, and is utterly counter to American ideals and values, but there's also the tiny drawback, hardly even worth mentioning, that it has substantially increased danger for Americans at home and abroad.

Oh, and it complicates things at trial.

Mourad recalls:

" ... originally titled 'Operation Infinite Justice' ...."

whereas I recall the original "Operation Iraqi Liberation" that perhaps initially better described America's national interest. I'm reminded of the Three Stooges feature film "Oils Well That Ends Well," although that may not be the result of Bush/Cheney's mideast adventures.

This discussion of the Khadr case points up to me the surreal nature of these military commissions. I have no doubt that all the lawyers and judges involved are attempting to act in good faith and have a "fair procedure." It is in fact those qualities of those people that are exactly the issue - the system is set up not to render justice but to render convictions. If Khadr is right that all 12 of his lawyers have told him how flawed the system is, one can understand why he takes the approach that he has to all this.

His spurning of a plea deal, his spurning of lawyers suggests that he is making a meta-reality argument about the process. All this and the rest of it are very profound issues upon which we might seek to reflect.

I do not understand Khadr as giving up here, but as asserting the fundamentally flawed nature of any process in this system. That is his direct challenge to the drafters of the various versions of the Military Commissions Act and to the edifice of the judiciary in this country - he is asserting that these tribunals are not regularly constituted. And, from all I have read, he is right about the flaws of this system.

Yet, Congress has made this flawed systerm lawful in terms of domestic law, but can not make it lawful as a matter of international law. One senses that Khadr is looking at this system outside of the purely domestic Constitutional structure or the foreign relations law vision of the United States and is looking at it in terms of norms that get behind the sophisticated structure and asks this basic question: are we getting judicial forms and judicial norms in this process?

And the heart of this is that Khadr and the people who grabbed him, know exactly what was done to his body by those who held him. These are facts, uncomfortable facts to be revealed to the light of day.

In a way, Khadr creates the same dilemma as Al-Libi did (tortured into saying the Saddam/AlQaeda link and then whisked to Libya). Al-Libi was the man who knew too much and was said to have "committed suicide" in the Libyan prisons.

Khadr appears not to be willing to make life easier for the US and Canada by committing suicide. He is "encombrant" as the French would say.

I was also saddened to see David Yglesias defending the plea with the other guy on the charge of murder in violation of the laws of war by asserting validity for it because Congress had passed it - even though there are serious questions about whether this is a crime under the laws of war. Just because Congress passes a law does not make that law comply with international legal obligations.

I hope to see how this case (and behind it KSM) play out as one sees here a very serious and tenacious challenge to the Bush-Obama military commissions which gets behind the procedural/substantive smokescreens that attempt to be put in our faces.


This comment has been removed by the author.

That’s a great post thanks for your time very interesting, good work

suggest that our services knew a lot about what the CIA and military were up to

You were merely an accessory to torture. We fucking tortured.

If that makes you feel any better.

Probably not.

Jpk wrote:-

“You were merely an accessory to torture. We fucking tortured. If that makes you feel any better.
Probably not.”

Nice of you to say that, but I’m afraid the picture is not even that rosy.

If you are in any doubt about that, you should firstly have a look at the web site of The Baha Mousa Inquiry

This is a public inquiry chaired by a retired Lord Justice of Appeal into the dealt of an Iraqi prisoner in the custody of British forces and the serious ill-treatment of others and also covering the failings not only of command and doctrine, but also of the military criminal investigation and court martial.

The Inquiry has heard oral testimony from 247 witnesses and will start hearing closing argument on 19th July. All the evidence is on line.

But at least we have no doctrine of Sovereign immunity for tort claims (abolished by the Crown Proceedings Act 1947) and the victims have been compensated and now we are trying to ascertain what went wrong.

I would like to think that one day the USA would do the same. Unfortunately, I see no sign of any inclination to do more than continue the cover up and that’s a major disappointment from a President who taught law at a major law school. I expected that kind of approach from the Shrub but not from Obama.

The other nasty thing that’s coming out of the Binyan Mohamed litigation is the two-faced approach of “Poodle” Blair, Jack Straw and others in the last administration. Blair and Straw were both lawyers of sorts. They must be taken to have known what they were doing was wrong. But while they were talking “human rights and no torture” in Parliament and in public they or their underlings were happily conniving in having British citizens surrendered to US custody probably knowing what the outcome would be.

I hope there will not be a cover up of that either and at least there is going to be an inquiry.

But any inquiry is inevitably going to come up against the problem of the classified nature of much of the evidence and pressure from the USA to keep shared secrets. So I'm wary about the extent to which the truth will come out.

Further to my post above there is more coming out of the woodwork. See this law report Mousa & Others -v- Secretary of State for Defence & Another.

"The claimant, Ali Zaki Mousa, is representative of a group of Iraqis numbering about 100 who either have brought, or wish to bring, judicial review proceedings against the Secretary of State for Defence alleging that they were ill-treated in detention in Iraq at various times between 2003 and 2008 by members of the British Armed forces in breach of Article 3 of the European Convention on Human Rights. There are said to be up to 100 other Iraqis who may wish to join the group in the future..."

These are only allegations at this stage but permissions has been given to go further. That seems to be to be right and proper.

The "The Baha Mousa Inquiry" link is broken.


Try this:-

The Baha Mousa Inquiry

Sorry if I got it wrong first time.

This comment has been removed by the author.

This comment has been removed by the author.

Thinking about the differences between our respective systems, in the UK the combined effect of the European Convention on Human Rights, the Torture Convention and the liability in tort of the Crown for the tortious acts of its servants means that the UK armed forces are just as criminally and civilly liable for the treatment of prisoners in their custody in, say, Iraq as they would be were the prisoners held in the United Kingdom.

As the Mousa –v- Secretary of State litigation makes clear, where necessary, the Convention rights enjoyed by Iraqi prisoners in UK custody gives them the means to hold the UK government to account. Our Courts are as open to them as they are to any UK resident even to the extent of public funding for their lawyers.

As I have said, this reality is going to impact on all future ”coalitions of the willing” involving ECHR signatory states – which is effectively the whole European limb of NATO. Given that the Canadian approach is broadly the same, this signifies that the USA is the only NATO country whose prisoners do not benefit from such guarantees.

Think for a moment about the potential consequence if every detainee of the USA held in Afghanistan, Iraq, in various black hole sites around the world and in Guantanamo Bay had identical rights against the US Government.

Will we see him again?

Charles Savage Twitter: "It's official: Marty Lederman leaving OLC & returning to Georgetown law. W/ David Barron's return to Harvard = no more academics at OLC"

[h/t Glenn Greenwald]

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