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Monday, May 7, 2012

Circus, Zoo, or Kangaroo Court?

Saturday's arraignment of the 9/11 defendants before a Military Commission at Gitmo has everyone asking wondering whether the marathon arraignment was a foreshadowing of things to come.  The arraignment proceedings took 12 hours to complete.  That’s right.  Not 12 minutes.  A full 12 hours.
There were numerous reasons for the length.  One defendant, Walid bin Attash, had to be wheeled into the proceedings restrained in a wheelchair, presumably because he refused to attend voluntarily.  Another defendant refused to waive reading of the charges, requiring the entire indictment to be read verbatim in court.  What is the reason for not waiving the reading of the charges?  It’s not as if the defense counsel had never read the document before and micro-analyzed each line of it.  It’s a delay tactic, pure and simple, designed to turn the proceedings into a farce, and blame the result on the commission itself and its designers.

The proceedings were interrupted several times when defendants engaged in spontaneous prayer sessions, even though designated prayer times had been scheduled as a religious accommodation.  One defense counsel requested that female prosecutors be instructed to dress more modestly so as not to offend the religious sensitivities of the defendants.

Through it all, the chief judge, Pohl, was extremely tolerant of the delays and bent over backwards to accommodate the defendants.  In a regular federal court, judges would normally not tolerate such disruptions, and would either remove a recalcitrant defendant or hold him in contempt.   Why the accommodations?

The military commissions are suffering a crisis of legitimacy. Removing the defendants, or proceeding in absentia, would only promote the perception, based in part on the anemic commission procedures that were in effect during the Bush Administration, that the current commissions are unfair and violate basic principles of criminal procedure and due process.  Consequently, Judge Pohl appears hell bent on giving the defendants as much leeway as possible so as to maintain (or create) a perception of fairness.

Unfortunately, there’s some risk of backfire here.  If the courtroom atmosphere comes off as a farce, the world may only perceive the chaos and not bother to appropriately attribute the blame to the defendants.  Observers will simply see a zoo and assume that Pohl is presiding over a kangaroo court – an unfair judicial proceeding. 

Ironically, Pohl may come to realize that greater control over the proceedings is necessary to maintain the solemnity of the process – a perception that will enhance the legitimacy of the commissions, even if it involves reining in the defendants and imposing restrictions on their conduct.