Down the rabbit hole
Obsessive secrecy about suspected security breaches at Guantanamo Bay has made a farce of due process, military lawyers say. Nyier Abdou peers into the Camp Delta abyss
The scandal broke with Youssef Yee. Captain Yee, a Chinese-American convert to Islam and a graduate of the US Military Academy at West Point, was arrested on 10 September for alleged breaches of security in the course of his work as a Muslim army chaplain at the US naval detention centre in Guantanamo Bay, Cuba.
At the time, another serviceman working as a translator at Guantanamo, Senior Airman Ahmed Al- Halabi, a Syrian-American, was already being held on suspicion of espionage. Arrested on 23 July, Al- Halabi's case became public in the weeks following Yee's arrest, raising speculation that the secrecy surrounding the contentious detention centre known as Camp Delta, where some 640 foreign prisoners are being held, could be undermined from within.
On 29 September, civilian translator Ahmed Mehalba, an Egyptian-American contracted as a translator at Guantanamo, was arrested at Boston's Logan Airport when returning from a vacation in Egypt. A spot-check of the CDs in his luggage uncovered one with a file containing classified information.
The cases have roused fears that Arab and Muslim Americans, particularly in the military, could again be targeted as generally suspect. "This is a closely watched case," Yee's attorney, Eugene R Fidell, told Al-Ahram Weekly. "People are saying that this is the same kind of extremism that is being displayed elsewhere."
"There is certainly a perception among many in the Muslim community in the US that the government has unfairly cast too wide a net in its efforts to combat terrorism," remarks Deborah Pearlstein, director of the US Law and Security Programme at the New York-based Lawyer's Committee for Human Rights (LCHR). Pearlstein, who focusses on post-11 September issues, told the Weekly that the US administration's "insistence on blanket secrecy" surrounding cases associated with the "war on terrorism" has become part of a pattern that emerged following the terrorist attacks of 11 September. She warns that the US -- "a nation that has long considered openness in government an essential aspect of democracy" -- has the responsibility to act only on evidence pertaining to individuals, rather than on "group suspicion".
It is not only civil rights that are in the spotlight. Military lawyers are also watching the Guantanamo cases for cracks in the edifice of military justice. Both Yee and Al-Halabi face courts martial. A so- called speedy trial rule demands that any serviceman in confinement must be arraigned within 120 days of his incarceration. This rule has been problematic in both the cases of Yee and Al-Halabi, neither of whom has yet been arraigned.
Yee, who is charged with two counts of "failing to safeguard classified information, in violation of a regulation" -- in other words, mishandling information -- is being held at a naval brig in Charleston, South Carolina. Although he has been in custody since 10 September, the pre-trial investigation that is conducted as a prelude to a court martial has not yet even begun.
Yee's looming 120-day deadline has been extended by an additional 45 days -- something his legal team has strongly objected to. The government has argued that it needs more time due to a lack of prosecutorial resources at Guantanamo, but Fidell dismisses the claim, branding the extension an "abuse of discretion" and scoffing that a lack of prosecutors is a "ridiculous reason" to delay proceedings.
Joanne Mariner, a New-York based human rights attorney and a specialist on the legal issues raised by Guantanamo, agrees. "It's an odd reason," she told the Weekly, "since Yee is being held at a brig in Charleston -- not on Guantanamo. Presumably there's no lack of prosecutors there."
Conversely, the speedy trial rule has served to ask the impossible of both the prosecution and defence in the case of Al-Halabi. Though the pre-trial investigation has been completed, Al-Halabi has not yet been arraigned. "The problem is they've classified the entire thing, from cover to cover," says his lawyer, Donald G Rehkopf, Jr. While it can happen that parts of an investigation are excised due to security issues, Rehkopf says that in his 27 years of experience, he has never seen an entire pre-trial investigation classified. "It's quite unprecedented -- and totally illegal," he told the Weekly.
A review of the investigation, which the prosecutor and Al-Halabi's two military lawyers have seen, resulted in the dropping of 10 of the original 30 charges brought against Al-Halabi -- among them the now famous charge that he brought baklava to the detainees -- and the decision that it would not be a capital case. A new judge assigned to the case this week set a date of 15 December for pre-trial matters to commence -- five days shy of the 120-day deadline.
Rehkopf says that it is not possible to begin on this date -- not least of all because it is absurd to ask him to prepare a defence in relation to an investigation he knows nothing about. Al-Halabi's case is by far the most severe of the three Guantanamo arrests, the most serious charge being what Rehkopf identifies as "amorphous espionage charges". Al-Halabi is alleged to have had "inappropriate and illegal contact with the enemy" and to have "communicated information to agents of the enemy".
"We asked 'Who is the enemy'," says Rehkopf, but the answer, Al-Halabi's legal team was told, is classified. "We don't even know the country," says Rehkopf. Officially, that may be the case, but it is widely known that Al-Halabi is suspected of contacts with the Syrian government.
Al-Halabi, who was working as a supply clerk in California when he was called up to work as a translator at Guantanamo, is also charged with violating the rules and regulations about classified materials. His defence, trying to ascertain that the materials were indeed classified and that Al-Halabi knew this to be the case, asked to be shown that the material was classified "in a legal manner" -- ie by someone with the appropriate authority to do so. The answer was that this information is classified.
Finally, Al-Halabi is charged with having had illegal contacts with some of the detainees. "We asked who, in order to interview them," says Rehkopf, but the prosecution refused to disclose any names. "We took a wild guess as to some of them," recounts Rehkopf, "and gave them a list. They denied every request."
Evidently scandalised by the secrecy surrounding Al-Halabi's case, Rehkopf compared working on the case to Alice in Wonderland. "Everything is circular reasoning," he said. Asked about a matter related to the case, Rehkopf deadpans: "I honestly can't answer that because I don't know if it's classified or not."
The issue of interviewing detainees at Camp Delta will not go away. Rehkopf intends to pursue the issue, noting that on this "the law is pretty clear." Asked if he would seek to interview detainees at Guantanamo regarding Yee's case, Fidell responded definitively: "We will have to do that," he said.
"One thing I find disturbing is that the charges on which Yee is being held are charges that normally wouldn't lead to someone being placed in pre-trial confinement, particularly in the case of a commissioned officer," says Fidell. If a heavy-handed approach to the case was meant to "send a message" to the staff at Guantanamo, Fidell argues, "that is not a proper use of pre-trial confinement." Deterrence, he suggests, is not a reason to infringe on one man's rights. "Yee has been held for longer than any punishment I could imagine him getting -- even if he were convicted," he added.
It is possible that Ahmed Mehalba is a victim of the high-profile cases of Yee and Al-Halabi. Mehalba faces three charges, the most serious of which is "unauthorised possession or control of documents related to national defence" -- the file found on his CD. He is also charged with making "false statements" in relation to retaining the documents.
Mehalba, who maintains that he does not know how the file came to be on his disc, was arraigned on Thursday and pleaded not guilty. His lawyer, Michael C Andrews, underscores that the issue boils down to a matter of mishandling files and does not tread into the theatre of espionage. "He has nothing to do with anybody else," Andrews told the Weekly. "He's just a hardworking guy who had no intention of committing a crime."
"He had security clearance for these files," Andrews stresses. "He was authorised to view these files. By mistake these files found themselves onto the disc. He didn't know he had them in his possession. Possession of them outside of Guantanamo is the problem."
Investigators grilling Mehalba demanded to know how the file got on the disc and Mehalba responded that he "didn't know". This is one of the false statements he is charged with. The other is a claim that he did not understand the meaning of "secret". Andrews maintains that at this point Mehalba had been questioned for hours and was likely to say "I don't know" to anything.
The suppression of information about the recent arrests at Guantanamo has fed already growing mistrust of the military establishment and crumbling faith in the justice system. Mariner notes that the government has clearly shown a "preference for secrecy in these cases -- as with everything touching on the war on terrorism". She added that the trend toward "secret evidence, secret proceedings and secret detentions" has "extremely disturbing implications" for the rights of both foreign detainees and US citizens. Fidell, a veteran of military justice, laments that it is "extremely disturbing to see the system abused". The system, he says, "is basically being hijacked".
A letter seen by the Weekly from Rehkopf to the prosecutor in Al-Halabi's case, Lieutenant Colonel Bryan T Wheeler, strikes a bold stance when it castigates the refusal to open up the pre-trial investigation, relying, rather, on the "usual mantra of 'national security'". Rehkopf here draws on a quote from Adolf Hitler to illustrate his point:
"The greatest strength of the totalitarian state is that it will force those who fear it to imitate it."
