Guantanamo Legal Proceedings Get Ever-Weirder and Increasingly Unjust

Guantanamo detaineesU.S. GovernmentTwelve years later, pre-trial hearings are underway at Guantanamo Bay for five defendants accused of a role in the 9/11 attacks. The defendants, including Khalid Sheikh Mohammed, who pretty much describes himself as an evil genius, potentially face the death penalty if convicted of playing a role in the bloody attacks. But if justice delayed, and delayed again, hadn't already cast a shadow over the proceedings, the U.S. government's Kafka-esque efforts to conceal its mishandling of the prisoners before they were ever formally charged with crimes should effectively compromise the legitimacy of the trials no matter the outcome.

As Matthew Harwood writes for the ACLU:

Much of the controversy last week centered on a protective order imposed by the military judge at the request of the prosecution and over the objection of the defense (and the ACLU). Among other things, the protective order deems classified all information about the CIA's torture and black-site detention program – including the defendants' personal knowledge and experiences of the torture to which they were subjected, as well as information that is publicly available in news accounts and investigative reports. On that basis, defense lawyers say, it could bar them from discussing information they obtain about the torture program with their clients, making it impossible for the accused to participate in their own defense.

Those issues led to Alice-in-Wonderland-like discussions in court.

For example, if a member of the defense team interviews a witness in another country and that person discusses information related to the CIA's torture program, defense attorneys fear they cannot share that information with the accused, even though the defendant may have experienced the torture firsthand or the information could contribute to his defense. Complicating matters more, defense lawyers said it's unclear to them whether the defense must conduct witness interviews overseas in "secure areas" if they believe torture will come up.

This, as you might guess, somewhat complicates both the defense team's efforts and the ability of the public to understand just what in hell is going on here. Earlier this year, Hina Shamsi, director of the ACLU's National Security Project, nicely phrased the probems with the order.

The government’s claim that it can classify and censor from the public a criminal defendant’s personal experience and memories of CIA-imposed torture is legally untenable and morally abhorrent. Even if the government somehow had that Orwellian classification authority, copious details about the CIA’s torture and black-site detention program are already public knowledge, and the government has no legitimate reason to censor the defendants’ testimony about their own memories of it.

It's not as if the torture allegations are some sort of surprise revelation that the defendants dropped into the proceedings out of the blue. A confidential but subsequently leaked International Committee of the Red Cross report (PDF), written in 2007, found that 14 "high-value" prisoners had been mistreated by the CIA while in its custody, before being transferred to military authorities. "The alleged participation of health personnel in the interrogation process and, either directly or indirectly, in the infliction of ill-treatment constituted a gross breach of medical ethics and, in some cases, amounted to participation in torture and/or cruel inhuman or degrading treatment." The ICRC's list of torture victims very definitely overlaps with the current list of defendants.

True, the defendants aren't necessarily nice people. But punishments (and torture isn't among the penalties available to American authorities) is supposed to be reserved until after conviction for one crime or another. Clearly, U.S. officials are afraid of what might come out at trial about the treatment of long-held prisoners, but that particular cat has been out of the bag for years. It's too late to do anything by muzzling the prisoners other than to make the process look even more after-the-fact and unjust.

On a related note, military authorities at Guantanamo apparently prevented the delivery of a copy of Alexander Solzhenitsyn's The Gulag Archipelago to detainee Shaker Aamer by his attorney. Aamer is a British resident who was cleared for release by the U.S. and return to Britain in 2007. He remains in custody for reasons that Solzhenitsyn would probably understand better than you or I.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Fluffy||

    You could easily persuade me that the feds are deliberately making as many false starts to this process as possible.

    They're trying to run out the clock. Someday, the prisoners will die of natural causes. If they can just hitting the reset button every few years until then...

    BALL CONTROL BITCHEZ

  • John||

    Sure because they are all inocent and the government is hiding that. And even if they are not they are in the right because the US helped install the Shah or something.

  • Neoliberal Kochtopus||

    Captain John was called a Redtard
    Dumb dumb dumb dumb dumb

  • John||

    Shut up fuck head. You have never had a serious thought a out these issues. You might as well be a sock puppet like shreek. You are just pathetic. You don't think and you know less than that. But you make up for it with smug talking points. Take it elsewhere dimwit. Take it somewhere where people are dum enough to take you seriously

  • ||

    Pretty good Shriek impression. Needs more "Bushpig" and "Beckerhead" though. Will you try Tony for an encore?

  • Metazoan||

    Maybe most are not. But why not just try them then?

  • ||

    wtf John? A number of them are clearly innocent (or at least not particularly guilty of anything that substantial) and obviously the US now has a vested interest in hiding this fact. You're being obtuse.

  • Fluffy||

    I'm sure they could convict most of them of SOMETHING.

    I'm happy to stipulate that.

    I'm merely saying that they don't really want to try them, even if they get to make up the rules.

    So they keep deliberately contriving rules they know will be struck down, so they can start over.

    Because if they try them, they have to reach a final disposition.

    And they'd just plain old rather not take the responsibility of doing that, because it creates the possibility that they'll make a mistake.

    It's infinitely better to have the process be eternal.

  • John||

    True enough. And in fact a tribunal system is very fair. But what they really want is a civil trial that will set all sorts of horrible precede t&s that can be used elswhere. And libertarians are being useful idiots helping them in this. These cases belong at tribunals so justice can be done without setting bad precedents. You never want to have a criminal case where no judge will let the guy go matter what. And that is what these cases are.

  • R C Dean||

    Its got nothing to do with guilt or innocence.

    It has everything to do with appearance and PR.

    We can't keep them forever with no due process at all; it looks bad.

    We can't give them full trials, because that opens the door to evidence about how they have been treated and the intelligence behind their capture; that looks bad.

    We can't give them obvious kangaroo courts; that looks bad, too.

    The way you minimize the bad PR from all these bad options is by never committing to anything.

    I expect that the best outcome for the government would be a freak earthquake that drowned Gitmo under a tsunami.

  • Fluffy||

    The way you minimize the bad PR from all these bad options is by never committing to anything.

    And you just run out the clock.

    Nobody gives a damn about Guantanamo, because it's old news.

    Imagine how old the news will be in 10 more years.

  • John||

    Any court will be a kangaroo court since no court would let KSM go. The answer is what we did with the nazis. Military tribunals. But libertarians would never stand for that. And holder and Obama really wanted and couldn't get was federal trials where judges woulda me all kinds of screwy pro government rulings to ensure KSM didn't go free. Those rulings could them be used in other cases.

  • some guy||

    John, I can tell how emotional you are over any given subject by the quality of your spelling and grammar. This might be the most emotional I've ever seen you...

    I'd say civil trials are in order because this isn't a war. Failing that, military tribunals would be better than leaving them in jail for a few more political seasons. At this point I just want to see the problem dealt with and the base closed.

  • John||

    Not emotional at all. Just stuck in a hospital waiting room bored using a smart phone. I laugh at you guys on this because you know so little about what international law actually says and what the options are. And yes what KSM did was a war. Not a conventional war but war nonetheless. And there are legal ways of dealing with such.

  • Les||

    What are the options for the prisoners who have been already cleared by the courts? What does international law say about that?

    How does international law define "war?" Does that matter more than how U.S. law defines "war?"

    I think you're laughing so much that you're not thinking.

  • CampingInYourPark||

    But if justice delayed, and delayed again, hadn't already cast a shadow over the proceedings, the U.S. government's Kafka-esque efforts to conceal its mishandling of the prisoners before they were ever formally charged with crimes should effectively compromise the legitimacy of the trials no matter the outcome.

    What do the prisoners being "mishandled" have to do with whether they participated in the 9/11 attack?

  • Metazoan||

    I suppose in the same way evidence obtained in an unwarranted search would impact the resultant trial.

  • Neoliberal Kochtopus||

    Really? you wait twelve years for trial and you don't think that may influence their testimony just a smidge?

  • John||

    So you think KSM is innocent? You really think it is a good idea for libertarians to die on the hill over whether poor KSM may have been treated roughly and had to wait for his trial? That will work out well

  • ||

    So glad to see your dedication to due process on full display, John. That's always reassuring to see in a prosecutor.

    If these guys are so guilty, why not try them and be done with it?

  • Neoliberal Kochtopus||

    So you think KSM is innocent?

    I am fairly certain he is not. Which means a trial should be NBD.

    You really think it is a good idea for libertarians to die on the hill over whether poor KSM may have been treated roughly and had to wait for his trial?

    Allow me to reframe: do I think it's a good idea to have a "justice" "system" that exists entirely within a legal black hole? Do I think the reason we have due process is to protect the least popular among us?

    I'll let you chew that over.

  • sarcasmic||

    Do I think the reason we have due process is to protect the least popular among us?

    It exists to protect you and Tulpa?

  • Neoliberal Kochtopus||

    Aren't you due for another beating at the hands of some biodad cop?

  • sarcasmic||

    Nah. He's busy fucking your mom.

  • Neoliberal Kochtopus||

    good for her!

  • Metazoan||

    I don't think it's about dying on the hill over KSM himself. I think he's guilty. It's about preserving due process. Maybe libertarians should focus on someone else for publicity reasons, I don't know. But on principle, even an obviously guilty KSM should receive due process. Shouldn't it be easy to convict, anyway?

  • tarran||

    John,

    My ex wife falsely accused someone of sexually assaulting her, and he almost went to trial. Now, sexual assault is one of those crimes that politically powerful groups want to erode due process protections on.

    If protecting guys like my ex's victim mean I have to fight on KSM's behalf, hell yes I'll fight on his behalf.

  • ||

    Your ex wife's victim and KSM have absolutely nothing in common since the one would have been tried in a domestic court with all of the protections and privileges that entails, while the other was captured in a military operation in a backwater shithole, waterboarded by the CIA for information, stuck on a foreign island, and is now being tried in military court. The latter sets no precedent in the former. And the nature of the capture and interrogation would make conviction of the latter difficult if not impossible in the former. I hate to say it, but John has a solid point here.

  • CampingInYourPark||

    Really? you wait twelve years for trial and you don't think that may influence their testimony just a smidge?

    You mean, they might have forgot whether they did it or not? I think they should be able to sue for being mistreated, but I don't see how it has any bearing on whether they participated in the attack.

  • Neoliberal Kochtopus||

    After 12 years they may admit to whatever the government wants them to admit to. This is why we have speedy trial provisions.

  • CampingInYourPark||

    After 12 years they may admit to whatever the government wants them to admit to. This is why we have speedy trial provisions.

    So, they keep them in prison until they will say what the gov't wants them to say to put them in prison. Got it.

  • Neoliberal Kochtopus||

    Are you really that dense? Have you never, ever heard of a false confession extracted via a State before?

  • CampingInYourPark||

    Are you really that dense? Have you never, ever heard of a false confession extracted via a State before?

    I have never heard of practice of keeping someone in prison until they confess before, no. If I wanted a confession and wasn't concerned about it being legal, there are much more effective ways. You have an example of that technique handy?

  • Fluffy||

    I have never heard of practice of keeping someone in prison until they confess before, no.

    I have.

    It's generally done in much pettier situations than this, though.

    In Boston, most public defender clients can't make bail. So they can either plead out and walk out with time served, or sit in jail for a year to await trial. So what do you think they do?

    How would that apply here? Well, to play devil's advocate for a moment, if I'm part of an extrajudicial process that I'm pretty sure will convict me regardless of the merits, it's in my interest to confess as soon as possible, so the clock starts running on my sentence. "We will leave you here awaiting trial until we're sure we can convict you," hits pretty much all the standard game theory levers it needs to hit.

    But I don't think that's happening here. It's an interesting argument, but I still ultimately think this is about running out the clock.

  • CampingInYourPark||

    In Boston, most public defender clients can't make bail. So they can either plead out and walk out with time served, or sit in jail for a year to await trial. So what do you think they do?

    Right, a confession that will lead to getting out jail happens a lot I'm sure. I just doubt that anyone confessing to planning and flying planes into buildings is thinking they're getting out with a confession. Guess I could be wrong.

  • Andrew S.||

    The Innocence Project has gotten numerous people who falsely confessed to murder out of jail. Not a big step to confessions like that.

  • tarran||

    Oddly enough it's the state that is acting as if their mistreatment makes a difference in whether they are guilty or not.

    A significant portion of the evidence comes from interrogations. If those interrogations were contaminated by torture, (and tie you down in a chair, camping, and with a pair of sturdy pliers, I'll have you confessing to having murdered Miley Cyrus and Barack Obama. I think 48 hours would do the trick).

    In a trial the jury's role as finders of fact demands that they weigh the credibility of testimony. Testimony arising out of torture should be given a low level of credibility.

    The state is arguing that these things should be classified - not because they imperil the security of the state - but because it might inflame passions. This is irrelevant. The jury should never be blinded simply because some of what they might see might paint the state in a bad light.

    Further, the investigators, who presumably are hoping to uncover the truth so that the guilty - and only the guilty - can be properly punished (stop laughing sarcasmic), should know that they will face some sort of negative outcome for misbehavior during the investigation. Absent going after sovereign immunity, a poor tertiary option is to deny them the conviction they work so hard for.

  • CampingInYourPark||

    A significant portion of the evidence comes from interrogations.

    I don't know how you can know that before a case is tried. How the evidence was gathered may very well have been wrong, but we don't really know what the other evidence is.

    and tie you down in a chair, camping, and with a pair of sturdy pliers, I'll have you confessing to having murdered Miley Cyrus and Barack Obama. I think 48 hours would do the trick.

    Sure, but a confession during interrogation is not normally the only evidence presented in a trial.

  • John||

    It makes no difference. Except that Obama promised not to admit such evidence and it is a dem talking point that torture never works. Of course it does work and they can't admit that.

  • CE||

    You know who else described himself as an evil genius?

  • Neoliberal Kochtopus||

    The Brain?

  • tarran||

  • ||

    Me?

  • sarcasmic||

  • tarran||

    Bad horse?

  • Archduke Trousersenthusiast||

    José Mourinho?

  • ||

    The Operative?

  • Steve G||

    At least find a more current stock picture for gitmo. As much as a travesty as it the situation is, they haven't been kneeling in gravel for a lonnngg time now.

  • Fluffy||

    I promise to always use more updated stock photos if they allow me to tour the facility and videotape everything.

  • Steve G||

    This is a little more up to date

    http://www.youtube.com/watch?v=g5vfBL9c1zM

  • Archduke Trousersenthusiast||

    But will there be room for Syrian detainees?

  • ||

    Lol. There won't be Syrian detainees. They deal with that a different way now. Bombs away!

  • Swiss Servator - past LTC(ret)||

    TLAMs take no prisoners.

  • James C. Bennett||

    I don't understand why the govt doesn't just kill these guys already. It's obvious they have no intention of treating them as criminals entitled to a fair trial, and I can't imagine that the prisoners could still be providing any kind of useful intelligence after all these years. What would they lose if they just shot them all, had the President give a "Gitmo closed, cuz FYTW" speech, and moved on? What are they getting out of this? Is it just an opportunity for them to distract and drain the coffers of civil liberties types that might instead be focused on domestic fascist bullshit that voters might care about?

  • Dweebston||

    As Fluffy suggested above, it's entirely a matter of kicking the can down the road another few years where the next administration will need to deal with it. Even assuming Obama and Holder took it on themselves to deal with the mare's nest of legal ramifications, there's no reason, now that the left has signaled their willingness to ignore Guantanamo while a Democrat holds the White House, to go ahead with past promises. They're accused of being lenient on terrorists if they do, so it's easier to let their hands stay tied over it.

  • sarcasmic||

    It is a messed up situation. They're not really war prisoners in the traditional sense in that they don't take orders from a government that will tell them to stand down once hostilities are officially over.

    They're not criminals in the traditional sense either. They're not revolutionaries or dissidents. I really don't have an answer.

    I think the government is going to run out the clock until they die or are too old and decrepit to be a threat to anyone.

  • R C Dean||

    The best box to put them in is probably war criminals. They engaged in warfighting activities (allegedly!) without the sanction of state sponsorship and control.

    Best I can do.

  • Dweebston||

    I expect more Latin from one of our several professed attorneys. Why do we even pay you?

  • PapayaSF||

    ^This. Arguably, according to the Geneva Convention, we have the right to convict them in a military court of various war crimes and execute them. Should have have done it 6-7 years ago when passions were still high.

    Now, I'd still try them all before a military tribunal. Execute KSM and some of the others, let some go if innocent, or if guilty give them death sentences and suspend the sentences on the condition they never engage in terrorism again. If they do and we catch them again, blammo.

  • KDN||

    "So sorry about those 31 years in captivity. Please note that by accepting this $1m lump sum payment you forfeit the right to sue us. Toodles!"

  • SugarFree||

    They are going to let them go, track them, and drone the first house they go into.

    THESE COLORS DON'T RUN!

  • Eduard van Haalen||

    Just kill them all and claim they slipped in the shower or were shot trying to escape, lol

    kiddingimjustkiddingjeez.com

  • Pro Libertate||

    Wait, didn't Obama shut down Guantanamo? I think it was sometime between freeing the gays from slavery and legalizing drugs. Or maybe that was after his peace initiatives that led to him winning the Peace Prize?

  • Federale||

    So, you want to release them? Even though they pled guilty. Even though they have publicly confessed? This is why libertarians are not serious.

  • Joe Clark||

    I love Guantanamo Bay. These are not U.S. citizens and they're not members of an a national military, so I'm not interested in their rights because the only right they care about is for themselves to have the "freedom" to kill our own children in front of our eyes, and then explain to us how we made them do it. I hope that Guantanamo Bay stays open forever and ever. I do not believe that we just have any random guy that we picked up for no reason at all at a farmers market in Yemen. I believe that we've got the goods on them, they have access to additional information and I have not 1 ounce of desire to let them use our own legal jurisprudence of getting out of the terror that they participate in and I have no intention of declassifying tons and tons of information that would be important for us to keep quiet so that terrorists don't know how exactly how we operate and what we've learned. I consider myself Libertarian on many issues and I'm even siding towards shrinking our military and pulling back from bases around the world, but the mainstream Libertarian thinking on Guantanamo and dealing with terrorists is wrong, in my opinion. Wrong and dangerous.

  • Joe Clark||

    Also, I don't believe in torture, but I've got no problem with water boarding and don't see it as torture. I wouldn't use it on prisonrs of war, but these aren't real prisoners of war. They're terrorists. They want to kill kids? Then they can spend the rest of their lives in sunny Cuba under American auspices. And those wiseguys know exactly how lucky they are that they're not in a prison back run by their home country's intelligence agency.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement