Judge Ignores Constitution, Blocks Prisoner from Knowing Government Witnesses

New York Times

VCS Note: Army Colonel Peter E. Brownback III, the judge in the prosecution of an enemy prisoner of war, forgot to read his Constitution that protects everyone’s freedom by allowing everyone suspected of a crime to confront the witnesses against them, as described in the Sixth Amendment of our Constitution.  Judge Brownback, in a clearly unconstitutional order, told attorneys for the suspect that they may not know the identities of the government witnesses testifying against him.  What is even worse is that New York Times reporter Willam Glaberson failed to mention the Constitution once in his newspaper article describing the Judge’s outrageous and unconstitutional order.

Witness Names to Be Withheld From Detainee

December 1, 2007 – Defense lawyers preparing for the war crimes trial of a 21-year-old Guantánamo detainee have been ordered by a military judge not to tell their client — or anyone else — the identity of witnesses against him, newly released documents show.

The case of the detainee, Omar Ahmed Khadr, is being closely watched because it may be the first Guantánamo prosecution to go to trial, perhaps as soon as May.

Defense lawyers say military prosecutors have sought similar orders to keep the names of witnesses secret in other military commission cases, which have been a centerpiece of the Bush administration’s policies for detainees at Guantánamo Bay, Cuba.

Some legal experts and defense lawyers said the judge’s order, issued on Oct. 15 without public disclosure, underscored the gap between military commission procedures and traditional American rules that the accused has a right to a public trial and to confront the witnesses against him.

Defense lawyers say the order would hamper their ability to build an adequate defense because they cannot ask their client or anyone else about prosecution witnesses, making it difficult to test the veracity of testimony.

The order, the documents show, followed a request by military prosecutors who said they feared terrorist retaliation against witnesses who appeared at Guantánamo proceedings.

“It is conceivable, if not likely, that Al Qaeda members or sympathizers could attempt to target witnesses,” a prosecutor, Maj. Jeffrey D. Groharing of the Marines, wrote to the judge, Col. Peter E. Brownback III of the Army.

The order says that three weeks before trial, prosecutors can abandon the secrecy protections or ask the judge to extend them. Prosecutors have also suggested that they may ask the judge to bar all information identifying witnesses from the trial. “Providing the witnesses’ true identities will add nothing to their testimony,” the prosecutors wrote in a legal filing.

Mr. Khadr’s military defense lawyer, Lt. Cmdr. William C. Kuebler of the Navy, said that while he has been given a list of prosecution witnesses, the judge’s decision requires him to keep secrets from his client and that he would ask Colonel Brownback to revoke the order. He said it treated Mr. Khadr as if he had already been convicted and deprived him of a trial at which the public could assess the evidence against him.

“Instead of a presumption of innocence and of a public trial,” Commander Kuebler said, “we start with a presumption of guilt and of a secret trial.”

Mr. Khadr, the only Canadian detainee at Guantánamo, is charged with killing an American soldier, giving material support for terrorism and other offenses. The documents released by the Pentagon, nearly 700 pages of previously unavailable records of arguments and rulings in the Khadr case in recent months, reflect a battle under way over how much information is to be revealed in public at the Guantánamo trials.

Some parts of trials are expected to be conducted in closed courtrooms for discussion of classified evidence, as permitted by law. Military officials say some witnesses might testify in open court behind a screen or, perhaps, in disguise.

The Bush administration’s effort to bring detainees to trial has been hampered for years by legal and logistical complications, but prosecutors have said they hope to try eventually as many as 80 of the 305 detainees at Guantánamo.

In an interview, Brig. Gen. Thomas W. Hartmann, a senior official in the Pentagon’s Office of Military Commissions, said that the commission system was open to scrutiny from news organizations and human rights groups and that the order was necessary to protect the lives of witnesses.

“The system is designed to be open,” General Hartmann said. “But there are certain things that simply must be protected.”

Most witnesses in Mr. Khadr’s case are expected to be military personnel who took part in a 2002 firefight in Afghanistan when an American special forces soldier, Sgt. First Class Christopher James Speer, 28, was fatally wounded. Mr. Khadr, who was 15 at the time, was badly injured.

“It is so fundamental,” General Hartmann said, “that we’re in this global war on terror. We need to protect our soldiers, sailors, airmen and marines and there’s nothing nefarious about it.”

He said requiring prosecutors to identify which witnesses they want to remain anonymous before the trial would assure that the military judge will evaluate assertions about why individual witnesses may need anonymity.

But Joshua L. Dratel, a lawyer in New York who represented another detainee prosecuted for war crimes, described such orders as an Orwellian effort to hamstring defense lawyers while making it appear that detainees are rigorously represented.

“It is ‘1984,’” Mr. Dratel said. “No system in the United States would operate this way.”

Some legal experts said while the identities of witnesses were shielded on rare occasions in American courts, an order applying to all witnesses in a case would be exceptional.

Such an order “would be very, very unusual” in a civilian court, said James A. Cohen, a Fordham University law professor, adding that he knew of no blanket order protecting the identities of all witnesses in a case.

Scott L. Silliman, a law professor and the director of the Center on Law, Ethics and National Security at Duke University, said people who had not heard the arguments could not fairly evaluate Judge Brownback’s order.

The military judge had the responsibility to protect witnesses while assuring a fair hearing, Mr. Silliman said. He added that Judge Brownback’s order appeared to balance those considerations appropriately.

But David D. Cole, a Georgetown University law professor who has been a critic of the commissions, said shielding the identities of witnesses “plays into the perception around the world that that United States is not willing to give detainees a fair shake.”

The materials released on Thursday, after numerous requests from news organizations, include extensive legal arguments and judicial orders on many central legal issues in Mr. Khadr’s case.

Many of the arguments, the documents show, occurred in e-mail exchanges between the lawyers and Judge Brownback. Only some of them have been referred to in two brief public hearings on the case at Guantánamo.

In an e-mail message on Oct. 9, Major Groharing, the prosecutor, described Mr. Khadr as a “trained Al Qaeda operative” who is “certainly capable of exacting revenge” on witnesses should he ever be free.

The major also indicated that military prosecutors had difficulties persuading people to testify at Guantánamo. “Potential witnesses have previously expressed reservations with participation in the military commission process because of fear of retaliation from Al Qaeda,” he wrote.

Commander Kuebler’s e-mail messages were filled with assertions that his client’s rights were being violated and with arguments that Mr. Khadr should be afforded the lenient treatment that has been accorded child fighters in some other wars. He ridiculed “the absurdity of characterizing an alleged former child soldier” as a dangerous terrorist and said the prosecution was ignoring rules assuring that detainees charged with war crimes are entitled to public trials.

In an e-mail message on Oct. 11 to the judge and the prosecutors, Commander Kuebler argued that it was notable that the entire discussion of whether witnesses would be permitted to shield their identities was being conducted without anyone in the public or the press able to observe the arguments.

“The manner in which this is being dealt with (i.e., off the record, via e-mail),” he wrote, “creates an added level of difficulty by making it appear that the government is trying to keep the secrecy of the proceedings a secret itself.”

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