Questions for the Presiding Officer

The four pages of charges against Mr. Zahir contain very little detail regarding the attack on the car. But they are replete with information about al Qaida and its terrorist mission and plans, and about Mr. Zahir’s work as a translator for the Taliban and his other services to al Qaida.

It’s ironic that while Mr. Zahir worked as a translator for the Taliban, in Tuesday’s hearing there was no official translation to Farsi available to him. Despite his prolonged detention at Guantánamo and the fact he was designated as entitled to a trial almost 2 years ago, Mr. Zahir received the written charges against him in English, Arabic and Peshtu but not in his native Farsi.

The charges against Mr. Zahir were merely read aloud to him by his military counsel. One can only wonder in what language he was interrogated, or why his military defense attorney was able to hire a Farsi translator but this entire commission system failed to provide the first Afghan national to be charged with war crimes the elementary right to an interpreter’s assistance free of charge.

To avoid postponing the hearing, both parties agreed that the defense interpreter provide Farsi translation for Mr. Zahir. But adding insult to injury, no one from the military commission nor the chief prosecutor could explain this failure.

Much of Tuesday’s hearing focused on the defense’s voir dire inquiry, their opportunity to question impartiality of the presiding offcier and educate the panel about the facts and the law in the case. While it is rarely used in criminal federal trials, this process gains particular significance in military commission trials where the governing rules and laws are not clearly defined and are subject to change by the appointing authority.

The military defense counsel respectfully asked questions, sometimes very personal, to insure the supposedly impartiality of the presiding officer, Marine Col. Robert Chester. Unfortunately, in many instances the military defense counsel missed the opportunity to follow up on the answers. One particularly important question related to the laws governing the military commissions. The presiding officer has said that he thinks “international law will have some application here,” and he also said that military criminal law, the Uniform Code of Military Justice, and federal criminal law would assist in closing gaps.

When asked about the relevance of the Supreme Court’s U.S. v. Alvarez-Machain decision, the presiding officer replied that he thought it was relevant: “We are outside the U.S. and the accused is a foreign national.” This decision addressed whether federal law enforcement officers, and agents of the Drug Enforcement Administration in particular, can enforce a federal criminal statute that applies to acts perpetrated against a United States official in a foreign country by arresting an indicted criminal suspect on probable cause in a foreign country.

In further questioning by the military defense counsel, the following additional information about the presiding officer was revealed:

• He provided legal advice to General Madison in Afghanistan regarding the participation of women in combat;
• He looked on Lexis-Nexus and found one article on the Nuremberg trials particularly helpful;
• He said that he routinely checks the internet website of Fox news and watches Lou Dobbs on CNN;
• He is not subscribed to any newspaper and that he would watch the O’Reilly Factor “until it gets too obnoxious;”
• He is reading news report and clips regarding the press coverage of the Khadr case in order to raise any problems that would affect the full and fair trial principle;
• He spent 2 1/2 months in Iraq as a military judge but did not have encounter with locals except when he had to buy electricity converter.

During the voir dire hearing many references were made to Khadr’s trial which was scheduled to resume Wednesday. Both hearings are before Marine Col. Robert Chester, so hopefully we will also hear answers to critical follow-up questions for the presiding officer, who also did not hide his plans to seek a judicial appointment after his approaching retirement from the military.

Mr. Zahir’s hearing will resume in July. Meanwhile his military defense counsel will travel to Afghanistan in order to prepare the defense. By the time he returns from Afghanistan hopefully the Supreme Court will have put an end to this kangaroo trial.