News Release ~ 09/21/2009

 Another Detainee Sues to Stop ‘Renegade’ Commissions

Washington, DC­ (September 21, 2009) – The military commissions judge at Guantanamo Bay granted a motion Monday to halt all proceedings in the case against five alleged 9/11 conspirators until the Obama administration decides whether it will transfer the cases to federal court. The administration says it will make that decision by November 16, 2009. The defendants, three of whom represent themselves, chose not to attend the Commission session; the two represented defendants were told that neither they nor their counsel were allowed to be in court, although counsel for Ramzi bin al Shibh attended nonetheless.

The decision to halt the proceedings a full eight months after President Obama issued an executive order to that effect was likely influenced by two emergency mandamus petitions filed earlier this month in the federal D.C. Circuit Court of Appeals seeking to halt the proceedings and declare the commissions unconstitutional. The first petition, on behalf of Ramzi bin al Shibh, can be found here. The second mandamus petition, filed on behalf of Mustafa al Hawsawi, is pending classification review. A public version is expected to be available tomorrow. Although the proceedings have now been brought to a full stop, the constitutionality of the military commissions remains an issue for the appellate court to decide.

Also on Monday, the D.C. court issued an order requiring counsel for bin al Shibh to file a status report within 72 hours on the commission’s handling of the continuance motion.

“These men have been held for years and subjected to physical and mental abuse, and until recently without access to counsel,” said Cynthia Hujar Orr, president of the National Association of Criminal Defense Lawyers. “They are entitled to have their day in a ‘regularly-constituted court,’ a standard regarding which these commissions fall far short. The absence of rules has allowed the Convening Authority and prosecutors to hamstring defense counsel’s efforts to represent their clients. The competency of two of the defendants to stand trial or plead guilty is seriously in question, and yet the defendants have been denied their Fifth and Sixth Amendment right to be examined by independent capital case-qualified mental health experts, which would be a due process violation in any state or federal court in the country. This is not in any way American justice.”

Prosecutor Robert Swann urged the military judge to order JTF GTMO to forcibly extract the defendants from their cells and bring them to court against their will, but the judge declined to do so. The prosecution’s efforts to obtain a “forced cell extraction” of unwilling defendants has been the subject of previous hearings in Guantanamo. Monday marked the conclusion of Ramadan, a day of religious significance for observant Muslims worldwide.

When the military judge eventually asked if there was a conflict between the prosecution’s request to grant the dismissal of defense counsel and their written motion to stay the proceedings, asking the commission to “refrain from taking actions” that would disturb the status quo, Swan at first said “No,” producing an audible gasp and a laugh in the observers gallery. After consulting with a Department of Justice official, he said “I’ll backtrack.” The military judge then deferred any rulings until the administration’s decision about the forum for trial was announced.

NACDL Executive Director Norman Reimer expressed exasperation at the situation at Guantanamo. “Eight months to the day after the Commander-in-Chief said ‘stay the proceedings,’ commission officials finally figured out the meaning of the word ‘stay.’ The military commission proceedings have been an embarrassment to American justice from the beginning. These past eight months they have become a travesty. It’s time to restore sanity and due process, so that those against whom there is probable cause can be tried fairly.”

“Now it’s time to turn the clock back to January 21st and nullify the charade that has been going on since President Obama took office.”

The prosecution informed that media that the forum has been narrowed to five possible choices: military commission trials at some other site after Guantanamo closes, or removal to federal court in one of four locations: Manhattan or Brooklyn in New York, Alexandria, Va., or the District of Columbia.

NACDL, in partnership with the American Civil Liberties Union (ACLU), formed the John Adams Project in 2008 to provide expert teams of civilian death penalty lawyers to assist the under-resourced military defense counsel assigned to Guantánamo detainees. To the extent that classified procedures permit, NACDL and the ACLU continue to vigilantly monitor these proceedings to expose their fundamental deficiencies.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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