by Anthony S. Barkow, a volunteer consultant for Human Rights First. He is Executive Director of the Center on the Administration of Criminal Law at New York University School of Law (www.prosecutioncenter.org). Barkow is observing and analyzing the American military proceeding for Human Rights First. This is the third guest blog post from Barkow. His other reports from the military proceedings are here and here.
Guantánamo Bay, September 24, 2008: It is a fundamental precept of American justice that an accused defendant must understand the proceedings against him. It is similarly fundamental that, when a defendant speaks during those proceedings, the court and jury must accurately hear and understand, and the record must accurately capture, what the defendant says. And it is fundamental that a defendant must be able to understand the proceedings so that he may assist in his defense. Each of these principles is being violated in the military commission proceedings at Guantánamo Bay.
In criminal proceedings in federal district court, all interpreters must be qualified to interpret court proceedings contemporaneously. Federal court interpreters interpret facts and complicated legal concepts in real time. And, in my experience, federal court interpreters rarely have difficulty keeping up with the normal pace of proceedings or doing their jobs. When they do, the proceedings come to a halt, and competent interpreters are brought in. But this week in the military commission proceedings against the five men facing capital charges for allegedly participating and planning the Sept. 11, 2001 attacks, it hasn’t worked that way.
Over the last two days, on too many occasions to count, interpreters could not keep up with events in court, or incorrectly interpreted what was being said. At least some of these interpreters -- who are shielded from public view and whose identities and credentials are kept secret -- are simply not up to their tasks.
On Tuesday, defendants, defense lawyers, and defense interpreters (who have the task of facilitating lawyer-client communication) consistently objected that the interpreters had lost track of or inaccurately interpreted the proceedings. At one point, one defendant’s statement was interpreted into English as the nonsensical: “In the beginning of the timing of the laws I said there is no difficulties base [sic].”
At another point, in a moment reminiscent of Monday night’s enlistment of help from defendant Ramzi bin al-Shibh’s four co-defendants to secure his voluntary appearance in court, defendant Ali Abdul Aziz Ali (who speaks excellent English) corrected the interpreter’s version of defendant Mustafa Ahmed Adam Al Hawsawi’s statement. Ultimately, it seemed, the court interpreter changed his or her interpretation to agree with Ali. In yet another instance, “top secret” was interpreted as “very private.” In a setting where classified information dominates, such an error completely misrepresents the proceedings.
Defense lawyers are aghast. At a post-hearing press conference Tuesday night, Major Jon Jackson, counsel to Al Hawsawi, described himself as “extremely troubled by the translator/interpreter problems” and accused the government of trying the 9/11 capital cases “on the cheap.” Civilian counsel to Al Hawsawi, Nina Ginsberg, estimated that her client did not understand 25 percent of what was said in court that day.
Ginsberg further stated that, according to the defense team’s interpreter, one-half of what Al Hawsawi said in court was not accurately interpreted. And it was not as if Al Hawsawi was attempting to communicate on trivial topics. In an extended colloquy with Military Judge Marine Col. Ralph Kohlmann, Al Hawsawi – who, unlike some of the other 9/11 defendants, seems genuinely to be considering having a lawyer represent him – attempted to ask probing questions to Judge Kohlmann about the duties and obligations of defense counsel, the contrasting dynamic inherent in pro se litigation, classified information and discovery, and attorney-client privilege. Because he and the judge were speaking two different languages without comprehensible interpretation, the discussion led nowhere. Thus Al Hawsawi was left uninformed about his fundamental choice whether to accept appointed counsel or represent himself, and a chance to overcome a barrier plaguing these proceedings – the ability to get defendants to trust their appointed counsel – was lost.
In an attempt to rectify the situation, Al Hawsawi’s attorneys have requested a stay of the proceedings to allow the government to hire better interpreters. Their motion-- which is not publicly available due to Byzantine public access procedures here but was described during Tuesday night’s press conference--includes an affidavit from the defense team interpreter detailing a series of material errors in interpretation that have occurred. The motion to stay has not been granted; instead the defense teams have been instructed to raise their hands when the interpretation process goes awry. Exasperated, defense counsel finally asked the judge on Tuesday to order the government to prepare daily transcripts in English and Arabic. This motion is unlikely to be granted, and frankly would be unnecessary if the interpreters could simply do their jobs.
The judge’s other purported remedy is to constantly remind the lawyers and the defendants to speak slowly. Thus the proceedings sometimes occur in a halting, robotic incantation. The judge and most defense lawyers often speak in clauses, not sentences or paragraphs. Aside from sometimes being difficult to understand, even when spoken in English, these parts of the proceedings are deathly slow and inefficient. Even when spoken at half-speed, though, the interpreters still sometimes get it wrong.
Other international law tribunals handle this issue far more effectively. At Tuesday night’s press conference, Major Jackson pointed out that, in the International Criminal Tribunal for the former Yugoslavia, computers are used to provide real-time translations that place side-by-side transcripts in both the official language of the proceeding and the defendant’s native language. Jackson stated that the military commissions could have used a similar system, developed at The College of William & Mary, but did not.
If this problem is not fixed in Guantánamo, the proceedings will not be accurately interpreted. The defendants will not understand the proceedings. The court and the jurors will not accurately be told, and the record will not accurately capture, what the defendants say. And the defendants will not meaningfully participate in their defense.
The result would be a travesty.