video judge

Illustration via Max Fleishman (Licensed)

A proposed a rule change would allow a judge to hold military commissions by video link.

The Obama administration believes that Guantanamo Bay’s Internet can help save the slow-moving prosecution of the five alleged masterminds of the Sept. 11, 2001, attacks—by having them virtually attend their trial. But lawyers watching the military commissions unfold worry that a dangerous precedent may be set, possibly endangering due process at home.

As first reported by the Miami Herald, the Pentagon sent a proposal to Congress in mid-April asking, among other things, for the ability to hold the military court’s proceedings via video teleconference. In practice, the proposed rule change would allow a judge to convene a hearing without the accused being physically present. Cmdr. Gary Ross, a Pentagon spokesman, says the request is merely a procedural shift designed “to provide flexibility at the military judge’s discretion to convene hearings without requiring all necessary participants to travel to Guantanamo Bay, Cuba.”

Though military commissions function by a unique set of rules, different from U.S. federal courts, the base coat of both is meant to be American values, including the right to a fair trial.

“This is an opportunity to hold those responsible accountable and highlight the strength of the American judicial system,” says Jonathan Hafetz, an Associate Professor of Law at Seton Hall Law who specializes in national security, human rights, and international justice issues. But he says that for the government to “cut corners” and deny a defendant the right to be present at their own trial poses a real risk. “If you’re going to deny due process protections when the crime is so severe,” he says, “why not limit them when the crimes are less serious?”

“Turning the defendant into a video game bad guy would turn the trial into a mere show.”

Despite the base’s sluggish Internet—video calls with remote witnesses frequently drop, delaying court proceedings—pushing military commissions online could save time and resources. The U.S. government spends $90,000 each time a charter plane flies a judge, legal teams, media, and other observers to or from attending the war court, which has happened many times since Khalid Sheikh Mohammed and his four alleged co-conspirators in the 9/11 attacks were arraigned in 2012. And that figure represents just a blip in the total expenditures associated with military commissions.

Pretrial hearings for the alleged 9/11 plotters in particular have dragged on for years. Among the many reasons: The court has had to address hundreds of motions, including the use of female guards to handle the accused, as well as allegations of misconduct, like the FBI hiding microphones in attorney-client meeting rooms. A trial date has yet to be set, and defense lawyers call a 2020 date “optimistic.”

Though military commissions are aberrational, James Connell, a defense attorney for Ammar al-Baluchi, one of the five accused, believes at least one thing is always true: Everyone deserves to be present at their own trial.

“A video link to a remote defendant, as opposed to a remote witness, denies the defendant the right to be present at his own trial,” says Connell in an email with The Daily Dot. “A death penalty trial turns on a lot of factors, including whether the panel sees the humanity in the defendant. Turning the defendant into a video game bad guy would turn the trial into a mere show.”

As Charlie Savage of the New York Times noted in December, the Federal Rules of Criminal Procedure were amended in 2002 to allow initial appearance hearings and arraignments to be conducted by video conference. In 2011, the rules were tweaked so that a defendant could attend their arraignment, plea, trial, and sentencing via video conference only if the case involves a “misdemeanor offense,” one that is punishable by fine and/or imprisonment for not more than one year. Additionally, the defendant’s written consent would be required.

Now the Pentagon is asking for video links to be used in arguably the most serious of cases and without requiring the defendant’s consent. The Pentagon’s request to Congress reads: “The military judge may provide for the participation of the accused, defense counsel, trial counsel, and other necessary participants by video teleconferencing for any matter for which the military judge may call the military commission into session.”

The last time the issue of video links was raised relating to Gitmo, according to Steve Vladeck, a law professor at American University Washington College of Law who focuses on national security and terrorism issues, was in the event the detainees remained on the island, but the trial was moved to federal court. “That proposal was actually put out there by some of the detainee lawyers,” says Vladeck. “That was the idea for how a detainee at Guantanamo could potentially plead guilty in an Article III (civilian) court without having to actually physically be in the Article III court.

“The whole proposal was predicated upon the detainee’s consent,” he continues. “Without that consent there are serious and potentially insurmountable due-process objections to proceeding in this manner.”

Michael Tigar, a criminal defense attorney who has represented clients like the Oklahoma City bomber but hasn’t practiced at Guantanamo Bay told the Miami Herald, “The Sixth Amendment doesn’t have a footnote that says, ‘Oh, by the way, trivial departures are OK.’”

“I understand Skype and understand that reality television has taken over American presidential politics,” he continued. “Whether it takes over the criminal courts is a different question.”

President Barack Obama promised nearly eight years ago to close the Guantanamo Bay prison, meaning the now 80 remaining detainees would likely be transferred to a U.S. detention facility. Obama faces a slew of congressional hurdles, however, including federal law prohibiting bringing Gitmo detainees to the U.S. And as recently as last month, Gov. Nikki Haley of South Carolina — one of the states being considered to house detainees—gave a long list of reasons why she’d never let the transfer occur. Her testimony before a House subcommittee on April 28 was followed by that of Todd Thompson, the county attorney for Leavenworth, Kansas—another potential locale for the detainees. Among Thompson’s arguments for not bringing the Gitmo prisoners stateside: the safety concerns associated with moving them from the prison there to a medical facility, or perhaps a court.

“I understand Skype and understand that reality television has taken over American presidential politics. Whether it takes over the criminal courts is a different question.”

Cmdr. Ross reaffirmed that closure remains the administration’s goal. But Ross would not rule out the use of video conference should detainees be brought to the U.S. The proposal, he says, is intended to “improve the efficacy, efficiency, and fiscal accountability of the commission process” and is “fully in alignment with the interests of justice and consistent with our American values of fairness in judicial processes.” The lawyers disagree.

“There is a huge difference and perhaps a constitutionally significant difference,” says Vladeck, “between using this kind of video conference technology when the defendant is consenting to participating in his trial that way and doing it against his will.”

Hafetz adds that he hopes application of this potential rule change stays within the specialized court. “Will it spill into the criminal justice system? There’s always a risk,” he says.  

Despite any potential norm-shift a trial by virtual presence may present at home, both Vladeck and Hafetz see the latest legislative proposal as being part of a larger problem — that military commissions aren’t working.

“Here we are, 15 years later, and the government is still trying to get the commissions right,” says Vladeck. “This is now the 5th or 6th legislative proposal. The commissions themselves are on their fourth set of rules, and the law keeps changing under the seat of the whole proceeding.”

He continues: “The fact that we have proposals like this one … underscores the increasing consensus on all sides that the commissions are just not worth the effort when you have ordinary civilian courts that are available to hear these very cases.”

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