Terror tribunal in Cuba called ‘fatally flawed’

GUANTANAMO BAY, Cuba — Nuremburg it was not.

Unlike the Nazi war crimes trials, which were conducted by seasoned legal specialists with the world looking over their shoulders, the opening round of the terrorist tribunals at Guantanamo Bay Naval Base last week seemed mired in uncertainty, inexperience and confusion.

As one session ended, the presiding officer appeared to be so blind-sided by a defense maneuver that he sat for long moments with his face in his hands before issuing a ruling.

Repeatedly, the translation system broke down.

At one point, a defendant unexpectedly fired his court-appointed lawyer and began to blurt out a confession before officials could bring the situation under control.

And the outside world got only glimpses of the proceedings, which were carried out under such tight restrictions that access was limited and no photographic, television or audio record of what went on are ever to be released.

After four days, the handful of international observers allowed to attend threw up their hands in disbelief and declared the system “fatally flawed.”

Said Jamana Musa of Amnesty International, “There were times when I actually had to think to myself, ‘They’re actually planning on prosecuting people in this forum.’ It was mind-boggling.”

Despite problems, Army Col. David McWilliams, chief spokesman for the commission, said the week proved the commission’s proceeding was “rounded but needed to be refined.”

The proceedings last week against four accused members of al Qaeda taken into custody in Afghanistan employed a military commission, or tribunal, system not used for more than 50 years.

Used in a handful of cases during World War II, notably against a group of Nazi saboteurs captured on the East Coast, the commission system had been abandoned until President Bush revived the idea as a way of prosecuting accused terrorists after the Sept. 11 attacks.

As a result, the five-member panel of military officers convened for the first such trials last week had few precedents to follow. They often seemed unclear what rules or legal procedure should be followed.

On Thursday, defendant Ali Hamza Ahamad Sulayman al Bahlul refused his military lawyers’ aid and got halfway through a statement in which he appeared to confess before the presiding officer cut him off. Col. Peter Brownback appeared to be caught off guard by the defendant’s action and concerned that the trial could be prejudiced if a defendant confessed before he was sworn in and had counsel.

Earlier, questioning of the lone alternate member of the commission highlighted the limited legal backgrounds of panel members, despite the complex issues they are expected to deal with.

A defense attorney, Navy Cmdr. Charles Swift, asked the alternate if he understood the primary source of international law. “Do you know what the Geneva Convention is, sir?” Swift asked.

“Not specifically. No, sir,” a resolutely frank Lt. Col. Curt S. Cooper answered. “And that’s being honest.”

That incident and others led observers from nongovernmental organizations to call for an all-lawyer panel.

“We’ve asked five very able commission members, who have essentially no legal training, to decide complex questions of constitutional and international law,” said Deborah Pearlstein, an observer with Human Rights First.

“And they are struggling with the definition of ‘jurisdiction,’ of ‘due process.’ Those terms are so basic. It calls the credibility of the entire process into question when we don’t even have a baseline to start.”