Ten years later, this series revisits my experiences as a prosecutor in one of only a handful of military commission cases that have actually gone to trial.
All information about the case of U.S. vs. Noor Uthman Muhammed is taken from publicly accessible, “open source,” case file documents on the Military Commissions’ website at http://www.mc.mil/. The other views expressed are my own personal opinions and observations, and they are not to be attributed to the Department of Defense, the U.S. Marine Corps, or any other governmental entity or organization.
His ISN (internment serial number) was 707. I came into the case very late. The defense team gave notice they were calling a mitigation witness, some sort of doctor or psychologist, who was going to testify the accused was suffering from Post-Traumatic Stress Disorder (PTSD) as the result of his capture and lengthy detention. The trial team was already up to their necks preparing for trial and they brought me on board at the last minute to handle this new witness.
I’d had some experience with this type of witness. Earlier in my career as a military prosecutor, I had inherited the retrial of an infamous Marine Corps death penalty case from the 90’s, when a Marine Sergeant burst into his Commanding Officer’s office and shot and killed the Executive Officer and put a .45 caliber pistol round straight through the C.O.’s chest. The C.O. miraculously survived and lived to tell the story at trial. In the ramp-up to the retrial, my burden lessened considerably when an appellate court reinstated the guilty verdict, leaving me to only have to do the sentence rehearing.
As with all death penalty cases, the big fight — assuming the government obtains a conviction— is in the penalty phase. The battle typically comes down to the weight the jury will give to the defense “mitigation expert.” In my death penalty, case I prepared to cross-examine the mitigation expert with a myriad of lines of attack: His work was slipshod and unthorough, he always testified for the defense, he had stated publicly a personal opposition to the death penalty, and/or he had observed no evidence the defendant had any remorse over what he had done. You could almost always find some kind of bias with these kinds of witnesses if you just looked deep enough.
Moreover, when an expert was going to offer any opinion about psychiatric diagnoses, you knew such diagnoses were always extremely pliable and often times in the “eye of the beholder;” you could usually find several other doctors or similar witnesses who would reach different conclusions than the defense mitigation expert. This had been simple enough in my capital case, and I figured it would be the same in this case. But I needed to do some research on this new defense witness before I would know how to proceed.
We were not going to have to prove whether Noor was guilty. His defense team had done an outstanding job of negotiating a good plea agreement for him. Once again, the “trial” would be about the sentence.
Military commissions practice follows court-martial practice in most respects, and in court-martial practice, sentencing hearings are adversarial; the government puts on aggravation evidence and the defense puts on mitigation evidence. Both sides can call witnesses and cross-examine those witnesses. And that was what we prepared to do in the last few weeks of January, 2011. The trial was scheduled to start the week of February 14th, 2011.
Life as a prosecutor or defense counsel was pretty mundane down on the island. When there wasn’t a case going on, which in those days was the vast majority of the time, our little side of the base seemed like a forlorn land that time had forgotten. By the time I got to the job, the detention camps and the military commissions were no longer front-page news. “Camp Justice,” as the “new” facility was called, had been constructed in typical expeditionary fashion on top of the old, long-ago closed airfield at Naval Station Guantanamo Bay, Cuba. Called McCalla Airfield in its heyday, it was located on a peninsula promontory on the east or “windward” side of Guantanamo Bay.
By the time I arrived, the tents that had initially housed legal personnel for the commissions had been replaced by a series of “containerized housing units,” or CHUs. These trailer-like housing units were a big step up from the old tents, and although quite small, were not bad for a one or two-week stay. After that, though, the walls started to creep in a little.
Once you stepped outside, there wasn’t much evidence that you were living on top of an old runway, except for the mammoth old aircraft hangar and the old air control tower located close by. Indeed, the island’s relentless flora had encroached over the years to reclaim much of the surface of the old landing strip, and what asphalt remained was almost covered with tents.
Still, on most trips when I traveled down with a few members of our trial team, the camp resembled a deserted village more than a place where the alleged masterminds of the 9/11 attacks and many others who were captured in the months and years that followed would be tried for terrorism and war crimes. The entire enterprise at times appeared hastily-planned and ill-conceived.
But when I got up early on the morning of February 15th and walked outside, the security posture at Camp Justice had changed considerably. As I made my way in my Marine Corps service “A” uniform (“alphas”) over to the courtroom carrying my case files, I was struck by the intensity in the air. I went through several concentric rings of security and walked into the new, state-of-the-art courthouse built just for the military commissions. No one but members of the prosecution and defense teams, security personnel, the judge, and the court reporter were allowed inside the courtroom.
We all took our places and got settled. Behind thick, bullet and sound-proof glass in the back of the courtroom sat about 50 spectators; reporters, military support personnel, and a few others. Seating was very limited and handed out by lottery.
The metallic sound of the courtroom doors being locked echoed. It was silent. Then to our left, the doors on that side of the building opened.
Over the past few weeks I had devoured every page of information on him I could find. I felt like I knew him very well, his background, upbringing, movements; how, when, where, and why he had joined. But this was first time I laid eyes on him.
He walked in slowly, almost shuffling, two guards towering over him holding both arms. This man was the “Khalden Quartermaster?” This thin, frail, Sudanese man who appeared much older than his 49 years? I tried to square it all up in my head. This was a terrorist?
And then I recalled that few of the 19 on 9/11 were physically imposing either, save for some of the so-called “muscle” hijackers. I knew what they looked like in their pictures. And I knew what they had done on September 11, 2001. Outward appearances could be deceiving.
They escorted him over to the defense table, where he took a seat between his defense team. The judge entered the courtroom and called the case to order. The military commission case of the United States of America vs. Noor Uthman Muhammed was about to begin.
Military commissions are military courts designed to try members of enemy forces during wartime, operating outside the scope of traditional and common law criminal trial proceedings, but just as legal, provided they are convened according to the Constitution, congressional law, and other legal precedents.
The judge, prosecutors, and defense counsel are military officers and lawyers. The jury is made up of military officers. Civilian lawyers can also serve as prosecutors or defense counsel. Although very similar to courts-martial, in that charges are brought by military authorities, prosecuted by a military authorities, judged by military officers, and sentenced by military officers, the notable difference between a court-martial and a military commission is that instead of the defendant also being a military member, the defendant in a military commission has historically been a member of an enemy army or fighting force. Prior to 9/11, the U.S. generally used military commissions or tribunals only during times of declared war or rebellion. The most recent use of military commissions had been after World War II.
How I arrived at that place, at that time
In the winter of 2009–10, I received a call from Headquarters Marine Corps. It was the officer at Judge Advocate Division who handled assignments, also a friend of mine. She inquired about how I liked my present job as a military court-martial judge. I loved it actually. I was stationed at Marine Corps Base Camp Lejeune, North Carolina, and being a military trial judge was the best job I had ever had. It was the most intellectually challenging legal post I had held to that point, and that remains true today. The officer on the other end of the line finally came to the reason for the call: Would I have any interest in “short-touring” my present job? They were asking because they needed help over at the Office of Military Commissions, and I had the experience to assist. I was humbled by the call, but I wasn’t exactly looking to move yet.
I had moved my family to the Crystal Coast of eastern North Carolina in the summer of 2008 from San Diego, California, where I was stationed at Marine Corps Air Station Miramar. There were three judge positions coming open at Camp Lejeune, and although I was offered one of the judge positions on the west coast, I had never been to Lejeune before, and we were intrigued by going someplace new and living in a small town on the Carolina Atlantic coast.
The author Nicholas Sparks, a native of the area, had painted a clear vision in some of his books of a quiet, quaint and picturesque area that my wife and I looked forward to experiencing. “The Notebook” and “A Walk to Remember,” set in New Bern and Beaufort, made us want to explore the entire setting. We decided to live in the town of Morehead City, just across the Gallants Channel Bridge over the Newport River from Beaufort. This location was also equidistant from Camp Lejeune and Marine Corps Air Station Cherry Point, the two bases where I would be presiding over court-martial cases.
After arriving there, we came to love many things about the Crystal Coast, especially waterfront Beaufort, along the Atlantic Intercoastal Waterway and where we usually spent our Friday evenings. We usually hung out at places like the restaurant Aqua or the Backstreet Pub next door, with a few couples nearly our parents’ age, the men being retired military veterans that provided a common background and worldview. Our common experiences gave us plenty of topics to discuss, and they served as friendly and easy-to-get-along-with mentors in parenting and how to deal with life during the empty-nest syndrome, when you found yourselves alone in the house with a lot of new-found time on your hands.
In some ways, looking back with the benefit of hindsight, I wish we had never left. We were well-off the beaten path and nearly off the proverbial grid, where the days drifted along at a languid, usually sunny pace, punctuated here and there by a lazy off-shore breeze, and most people were polite and friendly.
But as with most things in life, nothing is perfect. The positives and perceived negatives went back and forth, almost weekly. We were having a hard time finding a church where we felt at home, and our neighborhood home-owner’s association was simply stifling, the latter being made up chiefly of imports from other regions of the country who wanted to control everything you did with your own property. We loved our house and backyard, into which we had poured over a hundred hours of toil to get them both just right. It was the first house we had owned, having to that point lived in rentals or military housing, and it became our obsession. It was our haven, the perfect respite for escaping the world.
But we had some annoying neighbors on our own street, some of whom seemed to appear out of the woodwork when were planting a new tree or building a fort for our boys. I loved my job and I liked the area. But my wife and I were not excited about the schools our boys were attending, and a sort of “good old boy” situation permeated the kids’ sports activities, the effect of which was to sort of isolate the “new” kids (the military kids) in town from the same chance of making some team rosters and getting playing time that the native-born kids were guaranteed, simply by virtue of which fathers were running the show; it was not a meritocracy in all places. To be sure, most people didn’t act this way and welcomed us with open arms, but in some important places, this is exactly how it operated. It was too bad.
With the benefit of hindsight and years of perspective, looking back today, I can’t believe some of these things carried so much weight with us then, because now it all seems so trivial in the big scheme of things. Years later I had the opportunity to go back on a year-long mobilization, and with our sons now grown and the old HOA run-ins in the distant past, I had a completely different experience. In fact, I didn’t want to leave.
But at the time, these little individual issues all combined together seemed like a big deal. I was tired of the drama. So when I got that call from head- quarters, I listened to the offer and carefully considered it. I had to sit down and do a pro-con analysis.
Why did I consider the offer? Why would I give up the best job I’d ever had and leave what was — on the whole — a good place to live for something that by 2010 had been roundly criticized in the media and by civil rights’ groups, the military commissions system?
First, I knew a few things the media weren’t reporting about who these “detainees” really were, and I knew the public only ever got half the story. In the very early days of the new military commissions system, the government lost the public relations battle very early on, because it never made any effort to publicly rebut the allegations the media were making.
Second, in the days after 9/11 the government hustled not only in reaction to the attacks with military operations, but in attempting to determine what to do when and if Osama bin Laden and his terrorist brethren were captured.
The Bush administration early on decided to create a new system of military commissions — rather than send captured terrorists to be prosecuted in federal district court — because many felt that al-Qaeda and their ilk were not simply criminals, but were war criminals, and could be treated accordingly. After all — the argument went — they had declared war on America and Americans, and they had committed both acts of war and war crimes when they purposefully targeted civilians. So they ought to be treated like war criminals. The argument had merit.
The U.S. has a well-developed history of trying war criminals in military commissions, and it was initially felt this was the right arena to prosecute them. This original decision was a historic one because the last version of anything resembling military commissions were the Nuremberg War Crimes Tribunals that had tried the Nazis after World War Two, and now, almost sixty years later, it looked like we were going to do it again. Any military trial lawyer worth his or her salt wanted to be involved in something like that. And I was like anyone else. I put my name in the hat when the original solicitation went out back in 2003, but the selection process was murky and slow, and the early attempts to charge cases were plagued by sudden starts and halts.
My friend and Marine colleague, Dan Mori, has written about this strange early process in his book, In the Company of Cowards, in which he provides a detailed account of his difficult time representing the Australian David Hicks, who became the first person detained at Guantanamo to enter a plea of guilty in the new version of military commissions.
In the early days, the Army was given the task of running the new commissions, but after a time, all the services became involved, including being tasked with providing judges, prosecutors, and defense counsel for the detainees. This early process, combined with several legal challenges to the commissions as initially constituted, stalled things for years. In the intervening period, I pretty much gave up any idea of being a part of the new military commissions system, and went about my career as a prosecutor, then later, as a judge.
But by the time I got that phone call in early 2010, a lot had changed. The rules for the commissions had been improved to more closely resemble courts-martial, and many of the Due Process concerns that had been voiced by critics previously had been satisfied. And although the new Obama administration had professed during the 2008 campaign a desire to get rid of the system and close down the detention center at Guantanamo Bay, behind the scenes, they had quietly acquiesced to moving some of the cases forward. As a result, by 2010, there was a chance I could still be a part of what I still saw as a historic process that might never again take place. And I would be lying if I said I wasn’t enticed by the prospect of working on the terrorism cases coming out of 9/11. I viewed it as a once-in-lifetime-opportunity.
Looking back now, with the perspective of hindsight over all the legal and practical developments during the past decade, I still think it was.
To be continued.
Glen Hines is the author of the Anthology Trilogy of books — Document, Cloudbreak, and Crossroads — and the recently released Cathedrals in the Twilight, all available at Amazon.com and Barnes and Noble. His writing has also been featured in Sports Illustrated, Task & Purpose, and the Human Development Project.