Lawyers Allege “Defective” Arraignment at Start of Latest Guantanamo Case

Defense lawyer Brian Bouffard took questions after Tuesday's arraignment.

Guantanamo Naval Base, Cuba – Defense teams for the three Guantanamo Bay detainees charged with roles in terrorist bombings in Indonesia in 2002 and 2003 approached the latest military commission trip somewhat encouraged by the prospect of their clients finally getting their day in court after three years of abuse at CIA black sites and 15 years languishing in legal limbo on Guantanamo Bay.

Even James Hodes, who in a pre-hearing meeting with reporters used the word “absurd” to describe the case against his client at least a dozen times, acknowledged that the arraignment scheduled for Aug. 30 was “a step forward” for Encep Nurjaman, also known as “Hambali.” Nurjaman, an Indonesian who was allegedly a senior member of the Southeast Asian terrorist group Jemaah Islamiyah before his capture in 2003, is accused of recruiting his two Malaysian co-defendants, Mohammed Nazir bin Lep and Mohammed Farik bin Amin, for terrorist activities.

The three detainees face life sentences for their alleged roles in bombings in Bali in 2002, which killed more than 200 people, and the bombing in 2003 at the J.W. Marriott hotel in Jakarta that killed 11 people and wounded dozens more. All three arrived at Guantanamo Bay in 2006 from CIA black sites where they endured abusive interrogations that their lawyers say clearly constituted torture and violations of international and domestic law.

But Monday’s proceedings – the first attempted arraignment on Guantanamo Bay since 2014 – ended without a reading of charges due to a series of complications arising from the interpreters assigned to the case: two who provided the courtroom’s real-time translation from outside the courtroom; three who would normally sit at the defendant tables; and another sitting on the prosecution side of the courtroom.

The first phase of the hearing was expected to be relatively routine with the judge, Navy Cmdr. Hayes Larsen, explaining to the defendants their rights to counsel and swearing in their legal teams before going through a voir dire during which lawyers on both sides would inquire about his ability to be impartial in handling the case. Initially, the problem early Monday appeared to be technical as the defendants had difficulty hearing the official courtroom translation provided by the two interpreters who sit outside court; lawyers and the judge also had trouble hearing the interpreters’ English translation when defendants spoke in their native languages.

The two Malaysian defendants, bin Lep and bin Amin, quickly expressed problems with the quality of the Malay interpreter and said they understood 50 percent or less of the proceedings. Brian Bouffard, the lead lawyer for bin Lep, eventually told Larsen that his client had to switch Nurjaman's Indonesian interpreter because the Malay interpretation was so poor. Christine Funk, the lead lawyer for bin Amin, told Hayes that her client did not speak Indonesian so was stuck with the Malay.

“I am legitimately concerned that Mr. bin Amin  does not understand what is going on,” Funk said.

A separate issue surrounded the Indonesian interpreter. Defense lawyers told Larsen they had an affidavit from an employee of the Military Commissions Defense Organization stating that the employee previously heard the Indonesian interpreter questioning why the government was “wasting” money on the three detainees and asserting that “they should have been executed a long time ago.”

Judge Larsen, however, pushed on, telling the defense teams after each intermittent objection that he was satisfied the two interpreters were qualified under commission rules to provide the interpretation services for the proceedings. He said the teams could file motions related to their objections.

The lawyers also expressed alarm over the interpreter at the prosecution table whom they said previously assisted the three defendants years ago during their Periodic Review Board hearings, a parole-like system that assesses the status of Guantanamo Bay detainees and their suitability for release. Lawyers argued that the presence of the interpreter for the government would cause their clients to question whether they could ever have privileged communications with members of their defense teams. Larsen rejected the teams’ requests to remove the government interpreter from the court, and again said that they could file motions with their objections.

The defense-side problems  were exacerbated by the absence of interpreters who are assigned to sit by the defendants in court to provide additional linguistic assistance, given the complexity of the proceedings. After court Monday, the lawyers explained that they have doubts about whether these interpreters can be privileged members of their teams because they work for contractors controlled by the government and not specifically by the defense organization.

“This is a developing issue,” Funk told the seven reporters who travelled for the proceedings. “We just found out on Friday that the contractors are not contracting with the defense.”  

None of the defense teams nor the prosecution team, which is led by Air Force Maj. Matthew Hracho, sought to disqualify Larsen from the case after voir dire. On both Monday and early Tuesday, Larsen told the defense teams that they could seek access to the recordings of both interpreters to review their work for any future motions.

Still, in court on Tuesday defense attorney Bouffard objected again to the arraignment due to a lack of adequate interpretation services for his client.

“The arraignment is legally defective at this point,” Bouffard told the judge.

Another of the prosecutors, Air Force Maj. Casey Keppler, began reading the charges against the defendants at 10:15 AM. Within a few minutes, however, Funk interrupted to say that she learned from her client that the Malay interpreter did not appear to be translating what Keppler was saying.

“He’s not being arraigned,” Funk said. She told Larsen that he had an obligation to inquire with the prosecution team what was happening.

“Thank you, Ms. Funk,” Larsen responded before having Keppler continue.

As read by Keppler and laid forth in the charge sheet, the defendants are alleged to have committed a number of violations of the law of war for the Bali and Jakarta bombings, including murder, attempted murder, intentional causation of bodily harm, destruction of civilian property, terrorism and conspiracy, among others. The lead defense lawyers told Larsen that their clients would defer entering pleas.

The Office of the Chief Prosecutor first initiated charges against the defendants in 2017, but the prior Pentagon official in charge of the system – known as the convening authority – declined to refer the charges that commence the commission; the reasons for that decision are not public. The current convening authority, Jeffrey Wood, referred charges to start the case on Jan. 21, the day after the inauguration of President Joe Biden, who wants to close the Guantanamo Bay detention facility.

The chaos in court over interpretation on Monday and Tuesday overshadowed, for the time being at least, other complaints by defense lawyers expressed prior to the hearing. Lawyers say they have received a tiny fraction of the discovery that is due to them by a government team that has had 18 years to prepare,  a time period during which important witnesses have died and other evidence has been lost.

After Tuesday’s hearing, Bouffard lamented that what should have been a simple process was complicated by a “cascading” mix of interpreter issues. He said that his client once again on Tuesday was required use the Indonesian interpreter – the same person who believes bin Lep should have been "summarily executed" years ago.

“I think there has to be a new arraignment,” Bouffard told reporters.

Hodes agreed on behalf of Nurjaman.

“They’ve had 18 years to at least get translators together,” he said. “If they’re not going to give us discovery, at least get us people who speak their language.”

Funk said that her team would need to review the Malay translation of the proceedings prior to deciding on the next steps for her client. She said the first two days in court have raised doubts in her mind about whether bin Amin can receive a fair trial. 

Prosecutors declined to meet with reporters prior to the arraignment; a request for a meeting after Tuesday's proceedings did not receive an  immediate response. Larsen did not set a date for the next hearing.

About the author: John Ryan (john@lawdragon.com) is a co-founder and the Editor-in-Chief of Lawdragon Inc., where he oversees all web and magazine content and provides regular coverage of the military commissions at Guantanamo Bay. When he’s not at GTMO, John is based in Brooklyn. He has covered complex legal issues for 20 years and has won multiple awards for his journalism, including a New York Press Club Award in Journalism for his coverage of the Sept. 11 case. View our staff page.