The Pacific Council is one of a select group of organizations that hold official NGO observer status with the Office of Military Commissions at Guantánamo Bay, Cuba. Since 2013, members with relevant expertise have represented the Pacific Council by observing proceedings at GTMO.
Pacific Council member and retired O’Melveny & Myers litigation partner John Stamper observed the Abd al-Rahim al-Nashiri proceedings in September 2016 and October 2017. Al-Nashiri is a Saudi man alleged to be the mastermind of the USS Cole bombing in 2000 that killed 17 sailors.
Stamper recently spoke with the Pacific Council about his experiences and observations at Guantánamo Bay.
What is your most memorable experience from your visits to Guantánamo Bay?
John Stamper: Undoubtedly the hearing in which the Marine general in charge of all of the defense teams in Guantánamo, John Baker, was held in contempt and taken out of the courtroom by guards. That was clearly the most dramatic thing that I saw. Shortly before the hearings we attended, all of the civilian defense counsel for al-Nashiri asked to be allowed to withdraw because they had learned that attorney-client communications in Guantánamo had been monitored by the government, and they couldn’t assure themselves that they could communicate with their client. Baker approved that request.
The judge, on hearing that, took the position that only he could approve such a request and ordered Baker to rescind his approval and order the civilian counsel to come back to Guantánamo. Baker refused, saying he couldn’t ethically do that. The judge ordered him to take the stand and testify about his decision to approve the withdrawal. Baker said he also couldn’t do that because that decision was based on attorney-client privilege to information. The judge held Baker in contempt and told him to come back the next day for sentencing.
The next day, Baker stood up and tried to make his argument why he shouldn’t be held in contempt, and the judge said, "Sit down, you can’t speak." Baker said, "Let me be clear, am I being denied an opportunity to be heard?" And the judge said, "Yes, you’re not a party to this proceeding, you have no right to be heard," and proceeded to sentence him for contempt of court.
"In my mind there is no question whatsoever that it was a denial of due process to sentence [Marine Brigadier General John Baker] without giving him an opportunity to be heard. For the judge to hold the general in contempt for disagreeing with him was clearly an abuse of discretion."
The next day, the lawyers on behalf of Baker filed a habeas petition in federal court in D.C. Before the judge could rule, the commission released Baker. They didn’t overturn the contempt conviction, so that’s still out there hanging over his head, but they released him and said that his confinement would be postponed, so nobody knows exactly what that means.
In my mind there is no question whatsoever that it was a denial of due process to sentence him without giving him an opportunity to be heard. It’s a much tougher question as to whether the judge is right that he had the authority to make that original decision rather than Baker. That would be true in a federal court, but the military commission is such a strange creature unto itself. It is not at all clear under those rules, but for the judge to hold the general in contempt for disagreeing with him was clearly, in my mind, an abuse of discretion. So that was the most dramatic, and it’s an example of the very interesting legal issues that are presented because of this unique structure that was created just for these purposes.
Did you have any experience or interest in Guantánamo before this observer program? What would your advice be to future Pacific Council members who go on this program?
No, the Pacific Council’s program originally prompted me to go. My advice would be to oneself with the current issues in the particular case you will be attending and to review the papers that have been filed on the hearings in order to appreciate the legal issues, understand what’s going on, and form opinions about it. You really need to inform yourself in advance. A lot of these are not everyday issues for most of us: extraterritorial application of U.S. laws and the extent to which the hearsay rule will apply in this type of proceeding as opposed to how it applies in the federal rules of criminal procedure. Things like that require a little bit of work to understand.
Do you have any policy recommendations that might improve these proceedings? Do you think these cases are ever going to get resolved?
That last question is really uncertain. In the al-Nashiri case, the judge has apparently said he wants to start picking a jury in December. But considering that al-Nashiri is currently represented solely by a young lawyer with no capital case experience, it seems to me impossible. If that case does go to trial under those circumstances within the next year, any result will certainly be reversed. And if they want to get, as the law requires, experienced counsel or what they called "learned" counsel—a lawyer experienced in capital cases—that’ll take at least a year to get the lawyer, and who knows how long to get that lawyer up to speed. So that case, at least, in my view is either going to be a failure, a total waste of years and years of effort, or it’s not going to trial anytime soon.
The judge in the 9/11 cases, at least the last I knew, has not indicated when he intends to set a trial date. And the document issues continue to be a problem. There is currently an issue about destruction of evidence by the government. The president just ordered Defense Secretary James Mattis to review U.S. policies of detention, and Mattis just discharged the official in charge of Guantánamo and his chief of staff. So there is going to be shake up of some kind there in terms of how things are run. Whether that will lead to pressure to move things along more expeditiously, I don’t know, but it could mean that. The Pacific Council’s suggestion to replace the Guantánamo military judges with federal judges was clearly a good one and would have made a huge difference.
"The government is making a big mistake in pushing to do everything it’s arguably entitled to do under these peculiar commission rules, because it’s jeopardizing their chances of ultimately getting convictions that are sustainable."
The government is making a big mistake in pushing to do everything it’s arguably entitled to do under these peculiar commission rules, because it’s unfair to the defendants, and it is probably jeopardizing the government’s chances of ultimately getting convictions that are sustainable. The government would do very well to reexamine some of its policies. They should: 1) allow the defense to have control over its own case instead of the rules that basically let the prosecution govern the defense case, and 2) be more relaxed in terms of the military’s usual tour of duty rotations of counsel out of the cases and let them keep lawyers for a sustained period of time without jeopardizing their careers. There are a number of procedural things like that that would make things fairer and better for both sides.
Did you have a chance to speak with any U.S. service members while you were there? What were their impressions of the situation?
I spoke with both prosecution and defense teams, including with both of the generals in charge of the respective teams for the defense and the prosecution, with the civilian lawyers in charge of the defense, and with all members of the defense team out at the defense team barbecue. The chief lawyer for defense in the al-Nashiri case makes his view of the proceedings clear by wearing a kangaroo pin on his lapel to all of the hearings, and he basically says these proceedings have no relationship to a real trial in the U.S. system, they’re completely unfair, and he has no question that his client will ultimately be found guilty no matter what.
In fact, he says the only thing keeping his client alive is Congress because, by refusing to let him be taken to the United States, they prevented him from being tried, convicted, and executed in the federal system. The general in charge of the prosecution is an impressive man and probably trying to do the right thing. But he is too rigid in his taking advantage of all the commission rules, such as deciding whether they will take a hard line on all of these things or whether they’re going to try to simulate a fair trial in our system. So I fault him for not doing that.
Did you hear anything about defense lawyers not being able to ask the CIA for information on the black sites used for interrogation?
We don’t really know exactly what they have and haven’t been allowed to do. But certainly, we know from some of the hearings that the court allowed the prosecution to dismantle and destroy one of the black sites without notice to the defense, which was contrary to an order the judge had issued earlier that all such evidence be preserved. The defense had not yet had an opportunity to examine the site, but it was being preserved in case there was ultimately a determination that they were entitled to examine it. And just recently, in the 9/11 case, they learned that one of those sites that they were trying to visit in the 9/11 case has been dismantled, and it is no longer there, so there will not be an opportunity for them to obtain that evidence.
Now that you’ve been there and you know much more about the process and what’s going on there, how well informed is the public, and how well does the media portray what’s going on there?
The U.S. media basically has ignored Guantánamo for the last many years. Only Carol Rosenberg of the Miami Herald has continued to follow it and I think her reporting—although clearly favoring the defense—is still the best source of information that people have. She’s very much tied into the system and gets a lot of inside information. She learns things as soon as they happen, and if you read her reports you’d be pretty well informed about Guantánamo. But probably not a very large portion of people read her reports. Occasionally, The New York Times or another wide publication picks up what she reports, or as we saw recently they reported when the president decided to rescind the order to close Guantánamo.
"Foreign press continues to pay more attention than U.S. press and they paint an absolutely horrible picture of the United States as a result. The public overall probably doesn’t have much of a notion at all of what’s going on down there."
Foreign press continues to pay more attention than U.S. press and they paint an absolutely horrible picture of the United States as a result. An Argentine journalist said to me when we were down there for one set of hearings, "When we disappeared people and had governmental torture in Argentina we used to look at the United States as the model of what a country could be. Now we see you’re just like us." That’s a very, very bad thing. The public overall probably doesn’t have much of a notion at all of what’s going on down there: what the proceedings are or this fact that they’ve been pending for 15 years without ever approaching a trial date. I doubt that the American public, or a very, very small percentage of the public, has any awareness.
Justin Chapman is the Communications Officer at the Pacific Council on International Policy.
The views and opinions expressed here are those of the speaker and do not necessarily reflect the official policy or position of the Pacific Council.