Once again the legitimacy of the judicial process at Guantanamo is called into question, this time by the interference of a US government agency. The New York Times of April 19, 2014, reported that “two weeks ago, a pair of FBI agents appeared unannounced at the door of a member of the defense team for one of the men accused of plotting the 9/11 terrorist attacks.” They asked questions about the legal teams for some of the accused terrorists due to stand trial before the military commissions – courts designed to provide the appearance, but not the substance, of a fair trial. The FBI’s “covert inquiry” was a serious breach of attorney-client privilege, showing that even the government disdains the process.
The “phony justice” at Guantanamo is an outgrowth of a “phony war.”
When George W. Bush declared a “war on terror” and Congress authorized the use of military force “against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks” of 9/11, they created a legal pretense to justify unprovoked attacks on Afghanistan, Iraq, Pakistan, Yemen, Somalia and other countries, as well as the Guantanamo prison, indefinite detention and targeted killings.
Notwithstanding Justice Department legal opinions to the contrary, “war” is generally defined as armed conflict “between nations; a state of hostility between two or more nations or states.” There is no international legal precedent for a war on terror or terrorists.
According to the Final Report on the Meaning of Armed Conflict in International Law, published by the International Law Association in 2010, “armed conflict” (a phrase that has come to replace “war” in international law terminology) requires the existence of both organized armed groups and fighting of some intensity. The decision to treat members of Al Qaeda and other terrorist groups as enemy combatants instead of criminals strained the meaning of the existing treaties that govern armed conflict. It also triggered largely unmet provisions of international humanitarian law (such as protection of civilians and humane treatment of prisoners).
In Madrid, London, Mumbai and Bali, where post 9/11 terrorist attacks were characterized as crimes – not armed conflict – perpetrators have been tried and convicted in civilian courts. By contrast, the Obama administration continues to maintain that the US is in an armed conflict against designated terrorist groups wherever found.
Which takes us to the Guantanamo prison, where indefinite detention, secrecy, global surveillance and military trials find a rationale in the law of war. Indeed, the war or armed conflict nomenclature provided a convenient pretext for the Guantanamo prison and its phony justice for accused terrorists, many of whom have endured torture or other inhumane treatment.
US civilian criminal courts have long established and generally respected procedures that could have assured the implementation of fair trial norms. Georgetown University Law Center Professor David Cole has argued that there was no reason, other than to avoid disclosing torture and coerced testimony, to establish military commissions.
Notwithstanding some court-mandated revisions, the improvised rules for the military commissions reveal major gaps in basic fairness – even in death penalty cases. For example, defendants have not always been allowed to choose their own counsel. A hidden microphone has permitted officials to eavesdrop on attorney-client meetings. Defense lawyers have complained that the authorities intercept and read emails and other privileged communications. Some defendants may have endured inhumane treatment (e.g. forced-feeding) during pretrial detention. There are severe restrictions on public access to hearings. Only a small number of Pentagon-approved “observers” are permitted to follow the proceedings “via video feed on a 40-second delay from a soundproofed gallery in back of the courtroom.” Intelligence agency officers have surreptitiously blocked certain testimony.
Human rights organization monitors have commented on how everything in the Guantanamo courtroom seems weighted on the side of the government, avoiding protections afforded to defendants in the civil justice system. The right of the defense to subpoena a witness is curtailed. Defense lawyers aren’t allowed to talk to their clients about evidence discussed in classified hearings. And prosecutors are free to introduce hearsay evidence.
The intrusion of the FBI through its interrogation of a defense team member exposes a phony process and demolishes a last pretense of military commission legitimacy. Now is the time to end the military commissions and the “war” paradigm on which they are based.