Taking a mulligan?
The explanatory sheet provided to reporters suggested that four issues would be discussed in the Noor hearings this week. The military judge, however, heard argument on only one issue during yesterday’s two-hour hearing. The rest, which involve Noor’s status under Article 5 of the Geneva Conventions and discovery motions (to compel the government to disclose and account for evidence under its control), were deferred until a later date. That later date will likely be August 9, the next time that the commission expects to be on the record in Noor. That’s four months away, a significant delay in a case already much delayed. Previously, Noor’s case languished along with those of other detainees, who waited while prosecutors struggled to navigate the logistics and politics of trying detainees. The commissions have been slowed by their checkered legal history as well, their procedures rejected and rewritten by Supreme Court decisions and congressional reform.
The delays in Noor reveal another troubling aspect of the commissions: the number of former insiders who labored within the commissions before quitting in protest. In October 2008, charges against Noor were dropped (only to be reinstated a few months later) after a military prosecutor resigned, citing grave doubts about the fairness of the proceedings. Army Lieutenant Colonel Darrel J. Vandeveld went on to become a vocal and convincing critic, explaining that the handling of classified evidence, the rules of admissibility (which permit some hearsay and evidence obtained through coercion), and the obstacles faced by defense counsel made the commissions impossible to reform. He now favors, along with many other expert commentators, that suspected terrorists be tried in federal courts.
The current delay seems due to the slog through classified documents that Noor’s case requires. Although the military commission was last on the record four and a half months ago in the Noor case, the judge conducted six meetings with opposing counsel during that time in an effort to create and apply procedures to the review of classified documents. The 2009 Military Commission Act adopted the same rules for handling classified material that are used in federal court (codified in the Classified Information Procedures Act, or CIPA). Yet there is still no procedural manual to implement the new MCA, so the judge in Noor must impose procedures to conform with the new legislation while a handbook based on a superseded law continues to govern commission procedure. In press conferences, defense counsel have repeatedly lamented the government’s failure to release an updated manual. No doubt prosecutors would lodge the same complaint (not to mention many others!) were they not operating under gag orders that restrict their ability to speak publicly.
The frightening impact of these collective delays on the mental health of detainees-- and on U.S. standards of military justice--has been much documented. Noor has been held for eight years without a trial; he was held for five years before he was even informed of the charges against him. Yesterday the judge said that she expected his trial would not commence before February 2011, when he will reach almost nine years in pre-trial detention. That sort of treatment sets a very low bar for any standard of due process. Less noticed is the profound impact of seemingly endless delays on the servicemembers and civilians who represent the detainees and the people who make GITMO’s Camp Justice run. For them, the uneven pace of the commissions is a source of great frustration. Because of the potential for intervention by federal courts, the White House, or Congress, the people assigned to make the commissions run have been asked to make impossible choices. Shall they press ahead – as they are right now in Noor —with inadequate official guidance, aware that further delay is unconscionable from a due process standpoint but knowing that changes in regulations might create issues for appeal --and force them to re-do work that they are striving mightily to accomplish right now?