by Kenneth Eade
“Suit yourself,” said Jackson, with a disappointed frown on his face.
***
After his visit with his new “lawyer,” Ahmed was shackled to a chair in a small room and bombarded with strobe lights and loud rock music for hours. It was the equivalent of standing in the first row of the mosh pit at a Black Sabbath concert without earplugs. During this free concert, since he was deprived of his bathroom privileges, Ahmed was forced to pee himself. As the incessant noise droned on, he tried to escape to a peaceful place within his own mind.
Suddenly, after about nine hours, the music and lights stopped. Ahmed’s ears were ringing and he continued to see the flashing lights long after they had been turned off. Brown entered the room, grinning with anticipation.
“Listen up A-hab,” he declared. “You’re going to tell me everything that happened with your Jew lawyer. Tell me everything you talked about, and don’t leave anything out.”
“I have an attorney-client privilege,” Ahmed responded.
“You ain’t got no privileges here, Haji.”
“Why don’t you just listen to the tape?” Ahmed asked.
“Tape?”
“The tape you made from the microphones in the interrogation room.”
“You’ve got an active imagination. I take that you are refusing to cooperate?”
“No, I will tell you anything you want me to.”
Ahmed’s mind was filled with doubt. Had Brent Marks really quit? Would he ever see his wife again? Like a recovering addict, Ahmed vowed to live through the rest of this day without giving up. That would be a battle he would win over his oppressors.
CHAPTER FIFTEEN
Although there was no time, Brent had made a grievance to the U.S. Border Patrol and a civil rights complaint to the Department of Homeland Security on his own detention before his second trip to Cuba. He didn’t want to play any more games upon his return to the States. The purpose of this trip was simply to obtain Ahmed’s signature on the habeas corpus petition.
John Adams said, “It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.” The State gets so carried away with the punishment of evildoers that everyone suffers. As a lawyer, Brent had the unwelcome task of representing criminals throughout his career. When asked why he worked for such “scumbags” his answer was simple. I’m protecting us all from ourselves. Out of the 2 million people convicted of crimes every year in the United States, 10,000 of them are innocent, and those are just the statistics that are verifiable.
People are outraged at judges who are seen as “lenient,” and they are willing to give up their own rights in exchange for security from the Government. But the only real way to give security to the people is to protect the rights of the innocent.
***
When Brent arrived to Camp 7, the X-ray screener confiscated his habeas corpus petition.
“I need that, it’s why I came,” he told the young soldier.
“It has to go through secondary screening.”
“Corporal Reeding, can you please call Sergeant Brown for me. These documents are attorney-client privileged.”
“I’ll be right back.”
The argument with Brown was not one that Brent could possibly win. It ended up with Brown passing the buck to his commanding officer, Colonel Masters.
***
Colonel Robert Masters was a career soldier, who had earned his birds from the bottom up. His goal was to do the rest of his 20 years, then retire and start working on building a second retirement in another federal job. He had no intention of letting a bleeding heart liberal civilian attorney ruin any of his plans.
“I understand you object to our screening process,” said Masters.
“I don’t object to your screening process,” said Brent. “I object to you looking at communications between myself and my client. And I’m sure your superiors won’t take it too kindly if I named you in a lawsuit accusing you of denying my client his right to counsel.”
Masters rang his clerk to send in Sergeant Brown, who came in immediately, saluting.
“At ease. Sergeant, give this man his papers.”
“Yes, sir.”
Brown handed Brent the papers, and Masters dismissed the Sergeant.
“Colonel, there’s one more thing.”
“What is it?”
“My client’s wife would like to visit him.”
“No visits are allowed at Camp 7.”
“Should I include that in my petition?”
“I’m sorry, sir, that is an item we cannot be flexible on.”
Not that they were flexible on anything, thought Brent. Catherine would simply have to wait for the habeas corpus. This news would not sit well with Ahmed.
Before Brent left, Masters asked, “Will you be representing the detainee at his CRST hearing tomorrow?”
“Nobody told me anything about a hearing.”
“So you won’t be representing him?”
“Of course I will.”
***
“I thought you quit,” was the first thing that Ahmed said to Brent.
“Is that what they told you?”
“Yes, another attorney came to talk to me. He said he was appointed by the Government.”
“He was probably sent to interrogate you. That’s one of their interrogation tricks.”
“And I thought I knew them all by now.”
Ahmed brought Brent up to date on his latest treatment, including a hunger strike among prisoners to protest prison conditions.
“That’s a dangerous move,” said Brent.
“Every day in here is dangerous.”
“Ahmed, please just let me take care of this and get you out of here.”
“And when can Catherine come to visit me?”
“Unfortunately, that’s not going to happen as long as you’re here.”
“What if I’m here forever?”
That was a legitimate question, since many of the inmates at Gitmo had been there for years; most without even being charged with anything.
“Just trust me, Ahmed,” Brent said, sliding the habeas petition over to him and handing him a pen.
“Oh, I trust you. I just don’t trust them. This is their game.” Ahmed looked over the petition and signed the back page.
He was right, and the pursuit of justice was also a game, where one man or woman employed by the Government, or sometimes twelve men and women, decided the fate of another. Whether or not that decision was just depended on your point of view. The winner usually thought it was a just result: The loser bore the consequences.
CHAPTER SIXTEEN
The Combatant Status Review Tribunals, or CRSTs, were military tribunals designed to replace the military commissions that President Bush and his cabinet envisioned and created to try, convict and execute their prisoners outside of the United States court system. After the original tribunals were abolished by the Supreme Court in 2006, only to be resurrected by the Military Commissions Act, which abolished the right of habeas corpus: that was also shot down by the Supreme Court in 2008, so the CRSTs were reformed to comply with the Third Geneva Convention. They were not much of an improvement.
Brent didn’t have much time at all to prepare for this Kangaroo Court, but he had read some transcripts of proceedings on the Department of Defense website, so he knew what to expect. The detainee had no rights whatsoever, and it was mainly a show for the military to go through the “evidence,” which was presumed to be accurate, that the Government had to determine that the detainee was an enemy combatant. The CRST was supposed to be an independent and neutral body. Most of the proceedings took place in secret.
***
The courtroom for the CRST was a trailer. Brent was provided transport to it as Ahmed’s personal representative, and Ahmed was seated in a white chair, with his hands and feet shackled to a bolt in the floor in front of a table draped wit
h a cloth, on which there were placed three microphones in front of three judges chairs, behind which was a mirror on the wall and above that a tiny American flag. A small table held another microphone and recording apparatus for a recorder and a reporter, both of whom were seated when Brent entered the room.
After Brent was seated, three very important looking officers in full uniform took their seats at the draped table. The one in the middle, who had a higher chair, the most important one, spoke.
“Please remain seated and come to order. Please proceed, Recorder.”
The Recorder spoke in a nasal monotone, “This tribunal is being conducted at 1009 local time June 5, 2008 on board United States Naval Base Guantanamo Bay, Cuba. The following personnel are present:
“Captain Ulysses Fenmore, United States Navy, President.
“Lieutenant Colonel Joshua Pappie, United States Marine Corps, Member.
“Lieutenant Colonel Daniel Revere, United States Air Force.
“Sergeant Franklin Smith, United States Marine Corps.
“Reporter Lieutenant Jackson Devlin, United States Navy, Recorder.
“Captain Thomas Grant is the Judge Advocate Member of the tribunal.
“All rise,” said the Recorder, and the Kangaroo Court went through its pomp and circumstance, swearing in the reporter, the recorder, and then rising again to swear in the members of the tribunal.
“Mr. Brent Marks, I understand that you will be acting as personal representative of the detainee, is that correct?” asked Captain Fenmore.
“Yes, Captain.”
“Mr. Marks, I am the president of the tribunal. You will address me as Mr. President.”
“Yes, Mr. President.”
“The Recorder will swear in the personal representative.”
“Do you swear or affirm that you will faithfully perform the duties or personal representative in this tribunal, so help you God?”
“I do,” said Brent.
“Please be seated,” said Captain Fenmore. “Mr. Marks, are you advising the tribunal that the detainee has elected not to participate in this tribunal proceeding?”
“No, Mr. President. The very fact that he is seated here with his hands and feet bolted to your floor evidences his participation. The detainee also has a name, sir. It is Ahmed Khury, and he has decided to invoke his Fifth Amendment right to remain silent during these proceedings.’
“Mr. Marks, we granted an exception to allow you to act as personal representative, rather than an officer. I’m sure you were briefed as to the rules of this tribunal, were you not?”
“Yes, I was, Mr. President.”
“Then you should know, sir, that the Fifth Amendment does not apply in these proceedings. However, the detainee will not be forced to make any testimony.”
“I am aware that you believe that the Constitution itself does not apply to these proceedings or to the way you treat the prisoners.”
“Recorder, please provide the tribunal with the unclassified evidence,” said the Captain.
The Recorder held out a report in his hand. “I am handing the tribunal what has been previously marked as Exhibit R-1, the unclassified summary that relates to the Detainee’s status as an enemy combatant. A copy of this exhibit was provided to the personal representative in advance of this hearing for presentation to the Detainee.”
The report was a “fill in the blanks” form surveillance report that had been completed by military intelligence, giving a paint by numbers picture of Ahmed as a sleeper cell reuniting with his jihadist brothers.
“Objection, hearsay,” said Brent.
“Mr. Marks, the rules of evidence don’t apply to this proceeding.”
“It seems that no rules apply, Mr. President. Why don’t you just make your findings right now? We all know what they are going to be.”
“Mr. Marks, you will respect our procedures. The Recorder will read the unclassified summary of evidence for the record.”
The Recorder read through a report, recounting surveillance on Ahmed’s brother, Sabeen, his suspecting money laundering activities, alleged ties to al Qaeda, and their capture in Iraq. It was mainly a “guilt by association” report, detailing Sabeen’s friends, who were suspected al-Qaeda sleeper cells.
Next, Ahmed’s transcribed “confession,” extracted from his waterboarding session, was introduced.
“Objection, Mr. President. This document cannot possibly be used as evidence. It violates Mr. Khury’s Sixth Amendment right to counsel, his Fifth Amendment privilege against self-incrimination, his Eighth Amendment right to be free from cruel and unusual punishment, and over 50 years of case law against the admission of coerced confessions.”
“Once again, Mr. Marks, these principles do not apply to this tribunal.”
“If these principles don’t apply, Mr. President, then just what exactly are you fighting for in Afghanistan, and Iraq? Why have so many of our American boys died there? Defending what? The right to obliterate the Constitution and everything it stands for? The right to treat our fellow man as if he is some kind of an insect instead of a human being? Is that what we have come to? If that is what you think America stands for, Captain, I don’t know how you can say that you are proud to be an American.”
The Captain stood up in a rage. “How dare you impugn the integrity of this tribunal? My patriotism is not in question here. Mr. Marks, I will hold you in contempt if there are any further comments like those.”
“Understood Mr. President, your patriotism is not in issue. I’ve had my say.”
The Recorder then read into the record Ahmed’s coerced confession.
“Does the Detainee wish to present any evidence?”
“No, Mr. President.”
“Recorder, do you have any further unclassified evidence?”
“No sir, Mr. President, that concludes the presentation of the unclassified evidence, but I respectfully request a closed tribunal session at an appropriate time to present classified evidence.”
“Recorder, your request for a closed session is granted and it will be taken in due course. We will now pause briefly for the tribunal members to read the classified evidence.”
The three military chiefs looked as important as three toads sitting on the biggest lily pads in the pond, as they read through the secret evidence that neither Brent nor Ahmed had the right to see.
“We will now allow for the calling of witnesses. All witnesses called before this tribunal may be questioned by the Detainee, if present, the personal representative, the Recorder, and the tribunal members. Does the Recorder have any witnesses to present?”
“No, sir.”
“On the Detainee election form provided to the tribunal earlier, I note the Detainee has not requested any witnesses to be present. Does any member of the tribunal have any questions for the personal representative or the Recorder at this time?”
“No, sir.”
“No, sir.”
“All unclassified evidence having been presented to the tribunal, this concludes the open tribunal session. The Detainee, Ahmed Khury shall be notified of the tribunal decision upon completion of the review of these proceedings by the Combatant Status Review Tribunal Convening Authority in Washington, D.C. If the tribunal determines that the Detainee should not be classified as an enemy combatant, he will be released to his home country as soon as arrangements can be made.”
Fat chance of that happening, Brent thought.
“The Administrative Review Board will make an assessment of whether there is continued reason to believe that the Detainee poses a threat to the United States or its coalition partners in the ongoing armed conflict against terrorist organizations such as al Qaeda and its affiliates and supporters or whether there are other factors bearing upon the continued need for detention.”
With the cold mechanical canned read with the, “insert-the-blanks for the name,” the mock court proceedings had come to an end.
CHAPTER SEVENTEEN
Laura Ingalls Wild
er said, “Home is the nicest place there is.” As Brent was flying home from Cuba, he was looking forward to being in that special place. But, unbeknownst to him, a different part of the game was being played out in Santa Barbara. Agents of the FBI Special Terrorist Task Force paid a surprise visit to Catherine Khury’s home while she was at work.
The Fourth Amendment to the United States Constitution, intact for over 200 years, guaranteed that the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched, and the persons or things to be seized. After September 11th, 2001, those were just words on an old piece of paper, no longer a restriction of the Government’s overreaching power to shake down its subjects.
Without a warrant, and in the name of national security, four Special Agents with weapons drawn entered the Foothill Road home and personal sanctuary of suspected terrorist Ahmed Khury, his wife Catherine, and their family, secretly, without knocking and announcing their presence, as authorized by the Patriot Act. The only one they had to convince to open the door was the locksmith.
The agents shuffled by the two pairs of large shoes and two pairs of small shoes neatly arranged in the corridor and trampled the soft plush carpet of the Khury’s cozy living room, once reserved for shoeless feet. There, they opened every drawer and cabinet and carefully looked through all the contents, searching for anything that might be incriminating.
Inviting himself for a stroll through the Khury’s memories, one agent trespassed through the Khury’s family albums: their wedding, the birth of their first child, Karen, her first steps, their son Cameron, his first tentative ride on a bicycle. The agent helped himself to randomly selected pictures of Ahmed, Catherine and their two children, and placed them into a plastic bag. He continued to pore over every photo album, and removed pictures of Ahmed and “other Arabs.”
