Ex-terrorism prosecutor (Anthony Barkow) flags flaws at tribunal

Anthony Barkow, human rights observer and executive director of the Center on the Administration of Criminal Law at New York University School of Law

By LARRY NEUMEISTER – published November 28, 2008

NEW YORK (AP) — Like many human rights observers, Anthony Barkow has harsh words about the government's treatment of detainees at Guantanamo Bay. But Barkow offers a unique perspective: He's the only observer who successfully prosecuted terrorist sympathizers in his former life as an assistant U.S. attorney in Manhattan.

President-elect Barack Obama has vowed to close the prison on the U.S. Navy base in Cuba, but no decision has been made about how and where to try the detainees. Barkow said the federal courts can handle most national security issues but did not want to take a position on where the prosecutions should occur.

"Federal prosecutors would like doing cases like this — and they can do them, too," he said in a recent interview after returning from observing military tribunals at Guantanamo for a week.

He acknowledged that the tribunals are more protective of classified information, interrogation techniques and U.S. relationships with foreign governments than are U.S. district courts. But, he insisted, "certainly, all of these things could be done in federal court."

Barkow was a federal prosecutor for 12 years, much of that time under the Bush administration.

He left the office in May, soon after arguing the appeal of three defendants convicted in 2005 of letting Egyptian Sheik Omar Abdel-Rahman communicate with his followers from the U.S. prison cell where he is serving a life sentence. Abdel-Rahman was convicted in 1995 in a plot to blow up five New York City landmarks.

Today, the 39-year-old Barkow is executive director of the Center on the Administration of Criminal Law at New York University School of Law, a think tank dedicated to the promotion of good government practices in criminal matters.

He lived at Guantanamo for a week in September, returning to his tent at night to write a blog about his observations for the group Human Rights First. One of the things that surprised him most was the lack of openness.

Court observers, including himself, the media and representatives of human rights groups, sat behind a glass partition during the most sensitive proceedings, listening to testimony with a 40-second or so tape delay.

Monitors could press a button to black out information they believed was classified, some of which was later revealed to be trivial. Barkow gave an example of censors blotting out a reference by 9/11 mastermind Khalid Sheik Mohammed to a book by Richard Nixon — "as if the book title was classified."

He said defendants were unable to understand the proceedings and the court and jury unable to completely hear them. As a result, the record did not accurately reflect what happened.

In one blog, he wrote that some interpreters "are simply not up to their tasks," which led to "deathly slow and inefficient" proceedings in which interpreters sometimes got it wrong even when working at half speed.

Deborah Colson, a Human Rights First lawyer, said Barkow's observations about the interpreters were important, noting how "that really undermines the system as a whole."

Because of security concerns, families of the victims and the accused were not permitted to attend the hearings and no other observers were allowed in without military clearance.

Barkow wrote almost longingly of access to federal courts where "the public, victims and their families, scholars, the entire media, and others can follow federal court proceedings as closely as they wish."

In the interview, Barkow acknowledged that the Guantanamo cases are complicated because so many detainees were picked up on battlefields and interrogated by the military or the CIA to gather intelligence rather than build a criminal case. The detainees, he said, had been so traumatized by their treatment that establishing attorney-client relationships was "extremely difficult and often impossible."

But he said federal terrorism prosecutors have dealt with most of those problems in one form or another in the federal court system, though not as frequently.

Barkow said he was impressed by judges at Guantanamo who seemed fair and were patient and respectful with defendants, and that most prosecutors and defense lawyers seemed earnest, professional and well-meaning. But they were left "practicing within a flawed, ad hoc system," he said.

Jameel Jaffer, dirctor of the ACLU National Security Project, said it was useful to hear observations from prosecutors and defense attorneys.

"Lawyers who have prosecuted cases or defended cases in ordinary federal court should and will find aspects of the Guantanamo system to be totally unacceptable," he said.
On the Net for more references see * Human Rights First: Here and also The Center on the Administration of Criminal Law: "Here

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