By John Bechtel
Nearly 20 years after three high-profile Southeast Asian terror suspects were arrested and hauled off to CIA “black sites” and then to the infamous U.S. military prison at Guantanamo, their progress toward a trial faces potential delays over a lack of qualified translators.
The problem not only affects due process but illustrates yet another barrier the United States must clear to shut down the facility in Cuba, seen worldwide as a stain on America’s human rights record, two decades after the first prisoners in the post-9/11 war on terror arrived at Guantanamo Bay in January 2002.
Court documents examined by BenarNews in the cases of the three Southeast Asians reveal a dearth of qualified courtroom interpreters who specialize in Malay or Bahasa Indonesia – the language spoken in the world’s most populous Muslim-majority nation – and who also meet stringent U.S. security requirements.
Prosecutors in the cases against the three men acknowledge this scarcity in interpreters who are qualified and cleared for such courtroom assignments at Guantanamo, but defense attorneys say this is a “huge obstacle” in giving their clients a fair trial.
Concerns about the quality and accuracy of courtroom interpretations came to light during an arraignment last August for Indonesian Encep Nurjaman (also known as Hambali), and Malaysians Nazir Bin Lep and Farik Bin Amin, who face U.S. charges linked to terrorist bombings in Indonesia in 2002 and 2003.
Their lawyers spent much of the first day of the two-day hearing in a Camp Justice courtroom at the U.S. naval base in Cuba arguing that the defendants could not understand what was being said about them.
On Jan. 19, military Judge Hayes Larsen ordered prosecutors with the Office of Military Commissions (OMC) to present a plan by Feb. 1 to improve the quality of translations and name additional interpreters ahead of a scheduling hearing set to begin on Feb. 28.
“The defense teams all indicated they need assurances in order to be able to use their government-provided defense interpreters for attorney-client communications,” he wrote.
Prosecutors met the deadline to respond, but failed to meet the judge’s order.
“Despite OMC’s efforts to identify additional interpreters to support the 28 February-4 March 2022 hearing, it has been unable to identify two additional interpreters with appropriate security clearances,” the prosecutors said in a court document filed on Feb. 1.
The prosecutors said they were seeking to hire four full-time interpreters, two for each language.
“Because of the uncertain timeline involved in obtaining clearances for new hires who do not have clearances, it is too speculative to estimate when fully cleared full-time interpreters will be available to assist the commission,” they said.
“The government recognizes that due to the scarcity of part-time Malay and Indonesian interpreters with appropriate security clearances – unlike other military commissions that employ part-time Arabic interpreters – depending on the date of a hearing, two Malay and two Indonesian interpreters may not always be available to support the commission,” prosecutors said.
A Malaysian woman who asked not to be identified told BenarNews she had been approached about taking the job, but the security-clearance issue was one of the reasons she was not interested. Moreover, she said, she did not want to travel to “that island.”
While the interpreters were present for the August arraignment, the judge’s order called on prosecutors to identify interpreters who would be available to travel to the island or work remotely from a location in the “National Capital Region” – the Washington, D.C. area.
Referred to as “alien unprivileged enemy belligerents” in some court documents, Nurjaman, bin Lep and bin Amin face charges related to twin bombings that killed 202 people in Bali in October 2002 – Indonesia’s deadliest terror attack to date – and a bombing at the J.W. Marriott hotel in Jakarta in 2003.
None entered a plea following their arraignment last year.
All three men were arrested in Thailand in 2003 and sent to secret CIA black sites before being moved to the Guantanamo Bay prison in 2006. A U.S. Senate report released in 2014 found that each was tortured during his time in the black sites.
Defense lawyer speak outs
Attorney James Hodes, who represents Nurjaman, blasted the prosecutors’ plan.
“The government has had over 18 years to prepare a case against Mr. Nurjaman, including hiring qualified commission interpreters as is their duty,” Hodes said in a court document filed on Feb. 4. “Mr. Nurjaman objects to moving forward until the government is able to identify a second qualified Bahasa Indonesian court interpreter.”
“This is what you are tasked with and this is what you have failed to provide,” he told BenarNews.
Hodes called the lack of qualified interpreters a “huge obstacle for a fair trial,” adding that other federal courts would dismiss cases if they had not been brought to trial after nearly two decades.
In Judge Larsen’s January order to prosecutors to find additional translators, he said the Malaysian interpreter for the scheduling hearing was the same person used in the arraignment.
As for the upcoming hearing, Hodes said he had not seen an agenda and did not know what was to be discussed during those five days. But he also expressed concern about the quality of translations for the upcoming hearing.
Before the judge’s order, prosecutors sought to play down the defense’s concerns about translations during the August arraignment.
“[P]erhaps this is just – in the Navy we would say ‘getting our sea legs.’ We’re just kind of stretching things here and understanding how it will work,” they said in a court document filed on Jan. 11.
“[T]he arraignment portion of the proceedings was accurately interpreted.”
That comment did not sit well with attorney Christine Funk, who represents bin Amin, one of the two Malaysians.
“The government asserts some of the proceedings were (miraculously) interpreted accurately, and this is sufficient. However, the government does not provide context to their assertions,” she wrote in a response filed one week later.
“For this reason alone, the court should order a hearing with witnesses to determine the answer to the question, ‘Was Mr. bin Amin provided with an interpreter who ensured he understood the proceedings?’”
Should the answer be no, then bin Amin “must be provided a new arraignment,” she wrote.
Funk noted that the prosecutors’ refusal to disclose that there were issues with the interpretation during the arraignment “demonstrates that they are willing to withhold facts that are inconvenient. Moreover, this conduct makes it clear that they do not care whether Mr. bin Amin understood the proceedings.”