Kelli Stout, Research Fellow at the Center for Policy & Research, is blogging from Guantanamo Bay, Cuba this week as an NGO observer.
Day four and the commission got weirder. Today, the courtroom transformed into a Stepford Wives movie script, only adapted to a trial setting. Every procedural rule was followed. The judge was evenhanded and polite. Both sides were able to present their cases. But there were no objections or cross-examination. The adversarial character was completely absent and in its place, two tables of attorneys going through (some of) the motions.
We have to remember that this sentencing hearing commenced because of a plea agreement and a short stipulation of facts. We observers in the glass box are not privy to the complete agreement, which could include agreements to stipulate testimony, back off from rebuttals, etc. But that possibility doesn’t alter the strange appearance of the proceedings today.
The prosecution began by reading to the panel members the stipulation of facts, explaining Noor’s travel to Afghanistan, training at Khalden training camp, and subsequent stay in a safe house. The prosecution read from terrorists’ diaries, showed a video of Abu Zubaydah, and showed pictures of wires and bomb-making plans found at the safe house where Noor resided. But then, instead of calling witnesses live, the prosecution carefully read through pages and pages of stipulated testimony of the witnesses it would have called. The defense, including Noor, had agreed that the testimony in those documents would be the facts the witnesses would establish had they been present. We heard no live witnesses, no cross-examination, and even more strangely, no objections.
And that’s not to say the prosecution’s case was without obvious holes. The prosecution focused on the lives of other well-publicized, alleged terrorists who happened to train at Khalden and those men’s hatred for America. It never offered even stipulated testimony that Noor himself detonated any bombs, took up any arms, or even hated America (although it could be inferred that he knew the types of men he was training with). At one point, the prosecution read stipulated testimony describing how a man who had trained at Khalden brutally tested poison on dogs. Despite the clearly prejudicial nature of this evidence, the defense remained silent, never addressing it.
The defense, however, played its own case well. Taking advantage of his right to make an unsworn statement without cross-examination, the attorneys read his unsworn statement describing his desire to go back to Sudan and live in peace as well as the suffering he has been through during his time in U.S. detention. It also offered declarations from his tribal leader and a local NGO, who were ready to help Noor reintegrate into society. Two of the government defense attorneys even traveled to Sudan to visit Noor’s family. But again, all the evidence was written and read to the jury. The prosecution, like the defense, made no objections, remaining silent.
Even in its “rebuttal,” the prosecution only made glancing reference to other stipulated testimony, stating that in November 2002, only eight months into his detention, Noor had stated the Americans had treated him better than he expected. The defense presented no evidence in surrebuttal, despite previously admitted evidence that would establish poor treatment during his later years in confinement.
And with that, the show and dance ended for the day, just in time for Noor’s afternoon prayer. Today was definitely odd, but perhaps to be expected when scripted by a secret pre-trial agreement, the outcome of which will not likely be changed by a real jury or a panel of military members. They just have to go through the motions, bang the gavel down, and we can get off this island.
So, why again, did we come here? Today is day four. Morale among the observers (and probably other participants) is low, people are tired, we want to go home. Dozens of people have been away from their families, their homes, their lives, to hold this military commission. The government has put them in tents and small trailers and subjected them to military escorts at all times. The observers take ninety minutes lunches — because it takes that long to get everyone out back through security, gathered by their military escorts, bused up to the dining hall, and back. We talk about the financial costs of these commissions, but we never talk about the human aspect—how much it takes out of all of the people who are here to participate and watch the commissions, how much we have to give up to be in Guantanamo Bay. And to what end?