The viewing gallery for the military commission’s courtroom at Guantánamo Bay is behind a thick pane of clear, soundproof glass. The five monitors that hang from the ceiling—for the benefit of the journalists, NGO observers and 9/11 victim family members who have been given access to the fifty-seat room—show the judge’s empty chair, framed by seals from all branches of the armed forces. At 0900—everything is in military time—Army Colonel James L. Pohl enters from his chambers, at which point everyone stands up. Judge Pohl sits down, and so does everyone else.
The monitors, however, continue to show an empty chair. That’s because they’re on a forty-second-delayed feed, a mechanism intended to prevent accidental disclosure of classified information. Eventually Judge Pohl’s televised echo enters the frame, turns on the mic, and for those of us in the gallery, that’s when the court session actually begins.
This cognitive disconnect—that the law is simultaneously present and absent—sits at the heart of the alternate legal universe known as US military commissions. The Supreme Court has made clear that, generally speaking, the Constitution applies to detainees held at Joint Task Force Guantánamo Bay (GTMO). But government attorneys prefer to address matters on an “issue-by-issue basis,” as DOJ lawyer Clayton Trivett said during a pretrial hearing on October 18. The case at hand was that of Khalid Sheikh Mohammed—9/11 “mastermind,” as he is often labeled—and his four co-defendants. The issue at hand had to do with pretrial procedure. But regardless of its agenda on a given day, to witness a military commission proceeding is to watch a high-stakes game of Calvinball, in which the rules and parameters are established before your eyes. As Zeke Johnson, director of Amnesty International USA’s Security with Human Rights Campaign, put it, “at least one thing is obvious: the US government is making it up as it goes along.”
Military commissions have a relatively short but complicated history. Hastily authorized by George W. Bush in the months after 9/11, they were designed to try non-US citizens accused of terrorism. After the 2006 Supreme Court case Hamdan v. Rumsfeld found that they violated both the Uniform Code of Military Justice and the Geneva Conventions, Congress passed the Military Commissions Act, redesigning the system to try “unlawful enemy combatants.” The act was updated under Obama in 2009 to make the commissions appear more fair and transparent, but they still fall dramatically short of civilian trials. For example, evidence derived from statements obtained through torture could be admissible if the “use of such evidence would otherwise be consistent with the interests of justice.”
There is a Manual for Military Commissions, but without a lengthy legal precedent, confusion abounds. “Time and time again we see that the military commissions are sometimes changing on the fly,” said defense attorney James G. Connell.