Once again, incompetence triumphs over justice

The indefinite internment of suspected enemy combatants and terrorists at Guantanamo Bay was meant to be an aggressive, effective means of isolating, interrogating, and prosecuting particularly dangerous prisoners. Gitmo was chosen explicitly, of course, so that it wouldn’t be on US territory, and thus avoid (it was hoped) all those legal systems technicalities — but regardless of what one felt about the morality and legality of the whole setup, at least we were all assured that this was a case where crack professionals were in charge.

Only … not so much. Ex-Military Prosecutor Alleges Disarray in Handling Evidence Against Terrorism Detainees – washingtonpost.com 

A former military prosecutor said in a declaration filed in federal court yesterday that the system of handling evidence against detainees at Guantanamo Bay is so chaotic that it is impossible to prepare a fair and successful prosecution.

Not a successful defense, mind you — everyone already knew the odds were stacked against any defendents there, with limited access (grudgingly conceded) to defense counsel, evidence usually redacted from the defense for national security purposes (though still available, of course, to any prosecution), and an ever-evolving set of military tribunal setups that assume professionalism and lack of bias by military officers toward suspected terrorists.

No, we’re talking here about it being possible to prepare a “fair and successful” prosecution. And the accusations here are not coming from Human Rights Watch or the ACLU — they are coming from a former lieutenant colonel and former prosecutor at Gitmo.

Vandeveld said in a phone interview that the “complete lack of organization” has affected nearly all cases at Guantanamo Bay. The evidence is often so disorganized, he said, “it was like a stash of documents found in a village in a raid and just put on a plane to the U.S. Not even rudimentary organization by date or name.”

Vandeveld was assigned to the military prosecutor’s office at Guantanamo Bay in May 2007, shortly before Jawad was charged. Vandeveld, who as a civilian serves as a senior deputy attorney general in Pennsylvania, said he was shocked by the “state of disarray” as he began to gather material for Jawad’s case file.

He said the evidence was scattered throughout databases, in desk drawers, in vaguely labeled containers or “simply piled on the tops of desks” of departed prosecutors.

“I further discovered that most physical evidence that had been collected had either disappeared” or had been stored in unknown locations, he said.

 Of course, coming up with a means to prosecute in a fair and effective trial was never a high priority of the Bush Administration, which was more than happy to simply let anyone who had been captured and accused of being an enemy combatant sit there and rot. And even after the courts began forcing case reviews and trials, evidence was routinely withheld from defendants — who were, after all, already clearly guilty based on that evidence and therefore could not have been shown the evidence because it would have been showing secret stuff to effectively convicted terrorists, right? 

Now one wonders whether judges in these tribunals were being shown the evidence either, or simply taking the word of prosecutors that it existed (or had once existed). Was this an additional reason why defense attorneys were not allowed access to some evidence? Not because it was too top secret to possibly share, but because it had been misplaced or never properly collected in the first place?

The most fundamental problem with the Gitmo system (such as it is) has not been the use of harsh interrogation techniques (torture). That’s an “implementation issue.” Instead, it’s been that the system was set up on the premise that anyone who was captured and labeled an “enemy combatant” was, prima facie, guilty. In that context, goofed-up and missing records aren’t at all surprising, because the defendants here were already considered convicted just by being apprehended. Why go to the bother of keeping all that paperwork sorted when the trial (if one ever takes place) is just a formality?

This, by the way, is itself a prima facie case of why transparency in a judicial system is essential, and why secret courts and hidden evidence are not only lead to abuse of power, but to a shoddy judicial system that makes increasing mistakes and is unaccountable for them.

Nor is this an isolated case of poorly executed justice.

Military defense lawyers also said yesterday that the Office of Military Commissions may have accidentally withdrawn the charges against all defendants at Guantanamo Bay facing trial, including Jawad and even Khalid Sheik Mohammed, the operational mastermind of the Sept. 11, 2001, attacks.

Defense lawyers said the Office of Military Commissions, while creating new jury panels, took the additional step of re-referring all charges, which, they said, would return all cases to square one and require new arraignments.

“This was a royal screw-up,” said Air Force Reserve Maj. David Frakt, Jawad’s military attorney. Another military lawyer, Navy Lt. Cmdr. Brian Mizer, expressing disbelief at the action, said, “This is military justice 101.”

A military judge at Guantanamo Bay has asked lawyers in the case of Canadian Omar Khadr, who is about to go on trial, to brief him on the matter. “If, in fact, the charges referred on 24 April 2007 have been withdrawn and re-referred on 17 December 2008, it appears the first order of business at the Commission session scheduled for 19 January 2009 is to arraign Mr Khadr on the newly referred charges,” Judge Patrick J. Parrish wrote in an e-mail to counsel.

Hopefully they’ll be trying to keep the paperwork straight this time. 

(via Ginny)