Litchfield County Times
Published: Friday, May 09, 2014
The souls of nations, like the souls of the people who make up those nations, are always in peril. Each moral or ethical decision we make contributes to the tenor of our communities and, by extension, our world. If verification of this concept is needed, contemplate how the words of our Founding Fathers have resonated in lands around the world in the past two and a half centuries as more and more countries have struggled toward democracy and increasing civil liberties.
Despite a somewhat checkered human rights past, the United States has often held itself up as a beacon, an embodiment of a land where there is “liberty and justice for all.” It is the gruel fed to Americans in their infancy, a firmly held belief that we are morally superior, generous and kindly in our relations with others. That self-assessment has been repeatedly challenged during our war-like history, but perhaps never more so than in the aftermath of 9/11 when a shaken nation determined it would relinquish some civil liberties for increased security and would ignore our principled instincts to engage in actions we would condemn in others.
Among the ethical casualties of that era was our abhorrence of torture and a turning away from habeas corpus, which guarantees a prisoner will be brought promptly before a court to ensure there is sufficient cause for him or her to be detained. And, even when trials of suspected terrorists have finally been held, the rule of law has been bent.
This Saturday human rights lawyer Charles Church of Salisbury will describe his experiences last June at Guantanamo as an observer of the pretrial proceedings in the capital prosecution of the Abd al-Rahim al-Nashiri, a “high value” detainee. His talk will take place at the Scoville Library in Salisbury at 4 p.m.
Mr. al-Nashiri allegedly captained Osama bin Laden’s “boats operation,” which lethally struck the U.S.S. Cole in Aden Harbor and attacked other ships. He was captured by the CIA in 2002 and held at black sites, before being transferred in 2006 to Guantanamo.
Mr. Church will provide a first-hand account of the commission’s proceedings and describe the major players in the case. He will also evaluate the kind of justice that military commissions dispense in our behalf. He says he came away disappointed in the military tribunal process.
He summed up his war court experience up this way: “I carried with me to Gitmo a deep skepticism about the war courts and departed even more troubled. Truly, as the lead defense counsel for al-Nashiri kept telling the judge, ‘We’re making it up as we go.'”
Mr. Church recently published an e-book titled “My Week at Guantanamo’s War Court,” which is available at Amazon’s Kindle Store. In a jacket blurb, Prof. Mark Denbeaux, counsel to Guantanamo detainees, writes, “Few people understand how dangerous the Military Commission proceedings in Guantanamo are to the rule of law as we know it. Charles Church has raised the alarm in a clear and compelling way that is a service to all.”
Mr. Church has dedicated his life to working in the law, helping to fight age discrimination experienced by American workers. After his retirement in 1999, he cast about for something to do with the rest of his life before reading “The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals,” a New York Times best book of the year, written by New Yorker political correspondent Jane Mayer.
“She wrote how the United States gave up its soul to fight the war on terror,” he recalled. “I read it and said, ‘I know what I want to do. I want to do this kind of work.’”
His quest to find an organization that could use his talents took longer than he expected, but he eventually found his way to Mark Denbeaux, director of the Seton Hall Law School Center for Policy and Research. Mr. Church is an alumni of Seton Law School.
“I called him and told him I wanted to help,” Mr. Church recalled. “He said, ‘Charles, there is a line of people who want to do this.’ I said, ‘Give me anything to do and if you don’t like it a lot, I will go away.’”
That first experience led to a fruitful experience and Mr. Church has received more and more work from the professor. His service led Professor Denbeaux to offer him one of the coveted non-governmental observer slots for the trial proceedings at Guantanamo. While there, Mr. Church saw many disquieting things that left him in such turmoil he was compelled to write his book.
Some of the difficulties with the “dysfunctional” court system he observed were subliminal impressions, he admitted. He noted that the presiding judge, James L. Pohl, is an Army colonel, while the prosecutor, Mark S. Martins, is a brigadier general. “Sometimes there was a feeling in court of ‘I outrank you,’” Mr. Church reported. “I don’t know if that is true, but there are observers who believe it is.”
The defense team, led by civilian Richard Kammen, has been made uncomfortable by the leak of 779 documents concerning Guantanamo detainees, some of which related to the defense. That leak led to a delay in proceedings while the defense recovered. “The prosecution said they didn’t read the documents,” Mr. Church said with a clear note of skepticism in his voice.
Even more serious is the physical condition and mental health of the prisoner. Mr. al-Nashiri was captured in 2002 and taken to black sites at unknown locations around the world where he was presumably tortured before being remanded to Guantanamo. “How would you feel if you were an Arab guy who 11 years ago was captured and spirited off and tortured for four years before being brought to Gitmo? You do not receive health care and you are kept there for years before two charges are brought against you.”
Mr. al-Nashiri has been reported to be suffering from depression and Post- Traumatic Stress Disorder. Carol Rosenberg, writing in the Miami Herald, has suggested that these conditions resulted from his torture and incarceration and would be mitigating factors in sentencing.
In the pretrial phase, Mr. Church said, some evidence considered to jeopardize national security was presented to the judge in secret. “Even the prisoner cannot hear this evidence,” he noted. “He is certainly entitled to all the evidence during his trial, but the pre-trial stuff he can’t hear. Mr. Kammen argued that he could not maintain the trust of his client when [court officers] go off to a locked room to talk about him.”
Also at issue for Mr. Church is the liberal use of hearsay. A tenet of a fair trial is that the prisoner has the right to face his accusers, but in these trials there is a much broader interpretation of hearsay evidence. Mr. Church said that “al- Nashiri’s defense counsel has asked the judge how he can zealously defend his client when he cannot cross examine the sources quoted by witnesses. It has been a constant subject of debate.”
Mr. Church expressed admiration for both the prosecutor and the defense counsel. He noted that the prosecution of such cases has “soiled” military careers and that General Martins has given up future advancement to take on difficult cases that will stretch on until his retirement.
“He came to talk to us observers one night and conducted a real charm offensive,” Mr, Church said of General Martins. “It put me off, but in another sense, he is the real deal. He gave up advancement to do this.”
Mr. Kammen, who is working with fewer assistants than the military team, “is tireless and ferocious,” according to the observer. “I deeply admire him. He has dedicated his life to this kind of defense. He came to talk to us Friday night after a long week in court. He wasn’t so obvious about it. His complaint is the disparity in resources. The military can get anything it wants but the defense has to request funding for everything it needs, from paperclips to copy paper. They have to go to the judge and the government fights tooth and nail to deny it. They have been turned down.”
Since his return home Mr. Church has continued to monitor the trial, following current developments. This complicated writing his book because the topic remained “a moving target,” he said. The completed book is now available on Amazon.com.
“I oppose capital punishment,” he concluded. “If al-Nashiri is guilty, he should pay. But many feel that even if he is exonerated, he will never be free.”