Civil Liberties

Guantanamo Legal Proceedings Get Ever-Weirder and Increasingly Unjust


Guantanamo detainees
U.S. Government

Twelve 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.