The Obama administration is proposing to hold parts of the Guantánamo trials by video feed and let war court judges outsource some legal decisions to secondary military judges in a bid to speed up the war court.
The Pentagon submitted the request to Congress April 14, coincidentally just after the Miami Herald published a leaked report on potential toxic hazards at the war court compound in Cuba, Camp Justice. A Marine general is refusing to let his troops sleep there pending more information on the safety of Camp Justice. A Pentagon spokesman said the timing was unrelated.
Rather, Navy Cmdr Gary Ross said Wednesday that the proposed Military Commissions Act Amendments of 2016 are “designed to improve the efficacy, efficiency, and fiscal accountability of the commission process.” They are “fully in alignment with the interests of justice and consistent with our American values of fairness in judicial processes.”
As long as there’s no jury present, under the new vision, a judge could convene a hearing elsewhere and let the accused terrorists participate, Skype-style. Ross cast it as “another tool” for the military judge “to facilitate the scheduling and convening of hearings.” The idea is “to provide flexibility at the military judge’s discretion to convene hearings without requiring all necessary participants to travel to Guantánamo Bay, Cuba.”
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A veteran death-penalty defense attorney on the Sept. 11 case, Jay Connell, called the idea unworkable “because everyone has a right to be present at their own trial.” He reminded that the Pentagon prosecutor, Army Brig. Gen. Mark Martins, has argued in court that the alleged 9/11 plotters should be required to attend all pretrial hearings. The trial judge, Army Col. James L. Pohl, allows them to waive attendance after an initial appearance.
The new rules would authorize a military judge take a war crimes guilty plea by video feed.
Criminal defense attorney Michael Tigar, who has never practiced at Guantánamo Bay, said Wednesday that similar remote hearings were “floated through the Federal Criminal Rules Committee” about two years ago and rejected. “The Confrontation Clause has to do with physical presence.”
“I think it’s a terrible idea. We want the judge to look the defendant in the eye,” said Tigar, professor Emeritus at the law schools of Duke and American University, quoting a colleague, the late criminal defense attorney Michael J. Kennedy, as nicknaming the scheme “Defendants Electronic Access Terminal Housing,” whose acronym is death.
Officials could not put a price tag on the efficiency proposals for an operation that costs $5.56 million a year per prisoner.
Another proposed change would permit a trial judge to assign a secondary military judge to “rule upon one or more collateral or other motions before a military commission,” according to the request the Pentagon sent Congress without mention of the array of side issues that have stalled progress in the Sept. 11 trial. President George W. Bush established these military commissions, which Barack Obama reformed at the start of his presidency.
Pohl is handling motions on attorneys’ access to CIA black site evidence, an FBI investigation of the 9/11 trial defense teams, and about the rights of female soldiers to touch the Muslim captives in transit between their cells and legal meetings.
Approaching hurricanes, a communications break, discovery of a secret CIA mute button at the war court and a sick lawyer have all derailed hearings after a Pentagon plane shuttled participants from Andrews Air Force Base to Cuba — including the judge and attorneys, court stenographers, linguists, paralegals, couriers, journalists and Sept. 11 victim observers.
Death-penalty defense attorneys are critical of the plan, saying it does not let a defendant be present at his own trial.
The new proposal is the opposite of a withdrawn Pentagon order to speed up the trials by having judges live at the isolated Navy base. A Navy judge ruled the order an attempt to unlawfully influence the court, and the Pohl froze the 9/11 trial until the Pentagon rescinded it.
Officials could not put a price-tag on the proposals. The prison and the war court cost $455 million in 2015, according to the Defense Department. With 80 war-on-terror captives currently at Guantánamo, 10 of them with war court cases, that works out to $5.56 million a year per prisoner at the detention center staffed with 2,000 Pentagon personnel.
“While we acknowledge that the commissions, in the President’s words, ‘are very costly, have resulted in years of litigation without a resolution,’ we are committed to ensuring that the military commissions remain fair and impartial, consistent with our American values,” said Myles B. Caggins III, a White House spokesman at the National Security Council by email.
The idea is the opposite of a withdrawn Pentagon order to speed up the trials by having judges live at the remote Navy base.
“Holding a trial without a defendant present would not produce a conviction that would hold up on an appeal,” said Connell, who is paid by the Pentagon to defend Ammar al Baluchi, 38, the nephew of accused Sept. 11 mastermind Khalid Sheik Mohammed.
Virtual presence at a hearing would only permit the accused to see what a camera shows. It’s one thing to take testimony from a witness remotely, Connell said, but quite another to have the defendant participate in a Skype-style setting, something the Pentagon is already using for Guantánamo detainees to ask for release before a Washington, D.C., review board.
For those parole-like hearings, the Pentagon lets the captive’s lawyer go to Guantánamo to sit with the prisoner asking for freedom.
But adopting that formula for video-fed trial hearings would deny the accused “a host of intangible factors,” Connell said, “such as the relationship between the defendants and the judge and the other lawyers.”
Tigar, who has represented a long string of unpopular clients from Oklahoma City bomber Terry Nichols to Abbie Hoffman and a lawyer in the Chicago Seven case, said some might consider remote viewing of pretrial hearings, not the jury trial itself, as “just a trivial departure.
“But the Sixth Amendment doesn’t have a footnote that says, ‘Oh, by the way, trivial departures are OK,” he said. “I understand Skype and understand that reality television has taken over American presidential politics. Whether it takes over the criminal courts is a different question.”
White House: ‘We are committed to ensuring that the military commissions remain fair and impartial, consistent with our American values.’
Other war court changes the Pentagon proposed to Congress include:
▪ Canceling a requirement that each war crimes defendant get at least one U.S. military defense attorney. Successive Chief Defense Counsel have complained of shortages in available military defense attorneys coupled with a lack of continuity in a U.S. military justice culture that churns uniformed lawyers through assignments. Such a change would require that only the judge and jury at the tribunal be U.S. military officers.
▪ Permitting a Pentagon official to downgrade a death-penalty war crimes case to a non-capital case without canceling the prosecution, and starting over with a new charge sheet. If adopted, the war court Convening Authority, currently Navy General Counsel Paul Oostburg-Sanz, could reach into the court, dismiss a capital case and suddenly eliminate the requirement for the Pentagon to pay a “learned counsel,” or seasoned death-penalty defender a position that can cost around $350,000 a year.
▪ Authorizing “supervisory attorneys” at the Pentagon to provide legal advice to defense and prosecution teams without making them susceptible to a challenge that the advice would constitute “unlawful command influence.”
▪ Letting the Convening Authority office tell the judge directly why it chose not to fund a defense request. The way it works now, defense attorneys can go to the judge to hire an expert or consultant, for example, after Oostburg-Sanz’s Convening Authority staff has refused to pay for it.
Separately, other proposed Pentagon legislation seeks $33 million for the Army to build a “Mass Migration Complex” at the U.S. Navy base that the Cuban government wants returned.
The detention center staff is responsible, in part, for planning for a sudden influx of migrants at the base. In the 1990s the U.S. Coast Guard interdicted tens of thousands of Cubans and Haitians at sea and took them to Guantánamo as a safe haven, overwhelming the base infrastructure. The military held them in tent cities, including at today’s sprawling detention center.