At Guantánamo, the Government Is Still Making Up the Law as It Goes Along

At Guantánamo, the Government Is Still Making Up the Law as It Goes Along

At Guantánamo, the Government Is Still Making Up the Law as It Goes Along

Regardless of who wins on November 6, there are no signs that either Romney or Obama will act to dismantle the lawless military commissions created after 9/11.


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.

The more than twenty-five pretrial motions before the commission that week had to do with basic rules that will govern the upcoming KSM trial, by far the most complicated military commission yet. (The Obama administration sought initially to try KSM and his co-defendants in New York City, but moved the trial to Guantánamo after succumbing to political pressure from both Republicans and Democrats.) Among the motions discussed was the question of whether the forty-second delay between the court and the public is constitutional. Another, discussed extensively, was whether the five co-defendants can be barred from testifying about their own experiences on the grounds that their thoughts, emotions and memories are classified information. The prosecution, on behalf of the government, has argued that all utterances by the accused should be “presumptively classified”—that is, every possible statement by should be treated as secret government information—but this request has since been weakened.

If it sounds bizarre that the government can lay claim to an individual’s personal experiences and thoughts, well, it is. The prosecution’s argument is that the five defendants are in a “particularly credible position to confirm or deny” elements of the CIA’s rendition, detention and interrogation program. Having been tortured, they are in possession to describe it, and the government has clear incentives to keep them from doing so.

But lead prosecutor Brigadier General Mark Martins has claimed that the government isn’t being overly secretive, but simply exercising an abundance of caution. Gen. Martins has said that “embarrassment [of the government] is not a legal basis” for barring proceedings from the press and public—and neither is “the fact that a law may have been broken.” Critics are skeptical that the commission will allow any classified information in open court, however, due to the expansive secrecy the government has sought.

“What we are specifically challenging is the government’s attempt to keep from the public, the defendant’s thoughts, experiences and memories, of their torture, rendition and detention in the CIA program,” says Hina Shamsi, director of the ACLU’s National Security Project. The ACLU is seeking to block the proceedings on the grounds that the Obama administration has not met the constitutional requirement that a court remain open if the prosecution has not shown, on the record, a substantial likelihood of harm that would result from discussing the controversial information. The fact that many elements of the programs have already been officially acknowledged makes it even less likely that additional discussion would threaten national security.

David Schulz, who appeared before the commission on behalf of fourteen media outlets, argued that under the Classified Information Procedures Act, even classified information can be allowed in open court. “The fact that a piece of information is classified does not mean that you can just close the proceeding, if that information is needed for the trial,” Schulz told The Nation. Schulz, along with the ACLU and defense lawyers, also argues that the forty-second delay is unconstitutional. While forty seconds does not sound like a long time, Shamsi told The Nation that the delay “allows for the censorship of information [for] forever.” She raised an additional concern that the “categories [of information and speech] that can be suppressed are so broad … this acts as a classic prior restraint. The government is preventing people from speaking in advance of their speaking.”

Once during the course of that week the commission decided to close the courtroom. When this happens, the court security officer, seated next to Judge Pohl, hits a button and a “hockey siren,” as people refer to it, goes off. At that point, the feed to the viewing gallery and media center is cut off. On this occasion, however, Judge Pohl decided it was a false alarm and put the redacted argument back on the record. The closing had been triggered by defense attorney Lieutenant Commander Kevin Bogucki, who invoked the hypothetical beating of a detainee and the chaining of a detainee to the ceiling, as an example of having not given them any “classified information” beyond the conduct of the interrogator. The argument being that it’s not as though the Accused were given pages and pages of classified files detailing the CIA’s sources and methods – they simply know what was done to them. Judge Pohl made it clear that only because Bogucki had referred to it as a hypothetical situation was it placed back on the record.

Judge Pohl has a Bill-Murray-in-Lost-in-Translation demeanor: gentle but exhausted, intelligent but out of his element. Indeed, Pohl shares a likeness with Murray, as well as with Chief Justice John Roberts. He often says, “as people remind me, I’m not a federal judge,” and his unfamiliarity with federal court sometimes shows. At one point over the course of the week, Judge Pohl himself admitted his limited knowledge. “I understand federal practice to a degree,” he said, “and a lot of what’s been done in these cases generically has been putting a federal practice procedure on top of a—melding it with a courts-martial procedure—and it was something that’s a little bit of both.”

He was responding to pleas made by from defense attorney Connell earlier that morning to have a Court Security Officer act as a liaison between him and his colleagues and government officials in order to get clarification on handling information whose classification status is unclear. In another exchange, with prosecution attorney Joanna Baltes, Judge Pohl referred to this area as a “netherland,” saying that the court did not have anyone who could play such a role. “I guess I am at a loss,” Baltes responded.

This is not just a capital case, with five people’s lives at stake. As the ACLU’s Shamsi has said many times, this is “the most important terrorism case of our generation”—and the players are writing the rulebook as they go.

“You can’t do these trials in federal court”

Defense attorneys’ concerns about their clients extend beyond the courtroom. Commander Walter Ruiz, the only lawyer representing Mustafa al-Hawsawi, one of the five co-defendants and a so-called high-value detainee, described the difficulty of having severely limited access to his client, saying that the strain it puts on the defense can be “very significant.” For his part, al-Hawsawi waived his right to appear in court after the first day, in part because of his refusal to recognize the legitimacy of these proceedings.

Commander Ruiz appeared to make some military personnel in the room anxious as he described the process for transporting his client from his cell to court, saying it is overly invasive. His client considers it “degrading and unnecessary given existing technology,” according to Ruiz. When I asked if he had more general concerns about the conditions under which his client is being kept, Ruiz replied firmly, “Yes.” He then added, “However, I can’t go into the actual methods and means of detention.”

Lead Prosecutor and Brigadier General Mark Martins, a thin man who towers over virtually every person on the island, helped draft the 2009 Military Commissions Act and is in the unenviable position of advocating for the legitimacy of the trials. He quotes the founders when speaking to reporters, and responds to questions with long, sometimes academic answers. He constantly reiterates the fairness of the proceedings—which he calls “much more transparent than a lot of other systems.”

I asked him if we are witnessing the creation of a new, alternative legal framework entirely separate from our civilian system. He responded that military commissions are “an instrumentality or institution for a government that we have to preserve. You can’t do these trials in federal court.”

When Gen. Martins says, “You can’t do these trials in federal court,” he seems to mean either you can’t get a conviction in federal court, or you can’t ensure a conviction in federal court. Regardless of whether this is true—and the evidence suggests otherwise—this is certainly not a legitimate basis for creating an alternative legal system. In this sense, Martins’s words echo the view of former Pentagon general counsel William Haynes, who back in 2005 told Col. Morris Davis, former chief prosecutor for Guantánamo’s military commissions, “We can’t have acquittals. We’ve got to have convictions.” This view—of an explicitly rigged courtroom—would eventually lead to Col. Davis’s resignation in 2007, as he would tell The Nation in 2008.

Coming in the closing weeks of an Obama administration that once promised that closing Guantánamo was at the top of his to-do list, Martins’s assertion that government must “preserve” the ability to carry out such military commissions is chilling, proof of the fact that governments almost never voluntarily relinquish a given power once that power has been claimed.

President Obama recently said in an appearance on The Daily Show that he still wants to close Guantánamo. If he is sincere, there is plenty of evidence that calls into question the entire military commission project. First and foremost, federal courts have high conviction rates for terrorism trials, none of which have placed the country’s security in jeopardy. The few convictions secured through military trials, moreover, may not stand up to appeal. A DC district court recently overturned the conviction of Salim Hamdan, who had been found guilty in a military commission.

But the bigger problem is that a once radical idea—that the executive branch should have its own legal system to try so-called enemy combatants—has been normalized and codified under two separate administrations. Recent claims that the CIA and FBI are attempting to send a suspect in the Benghazi killing of Libya Ambassador Christopher Stevens to Guantánamo Bay underscore critics’ skepticism that military commissions will be a limited tool with a definite ending.

The same, of course, is true for the “War on Terror” more broadly, as evidenced by a chilling Washington Post report on the “disposition matrix,” a counterterrorism tool that further entrenches the policy of “targeted killing” embraced by the Obama administration. As Spencer Ackerman writes, “Obama did not run for president to preside over the codification of a global war fought in secret. But that’s his legacy.” Indeed, as John Kiriakou, a whistleblower recently prosecuted for trying to shed light on the CIA’s torture program, knows too well, the Obama administration has charged more whistleblowers under the Espionage Act of 1917 than all previous presidents combined.

The military commissions are just one piece of a larger, disturbing trend toward centralized presidential power with virtually no oversight or transparency. “We are facing a society in which the impetus toward secrecy is growing,” Shamsi said towards the end of our interview. “We have to fight against the tide which keeps the public in darkness about how our government is acting in our name.”

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