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Why Process Matters in the Military Commission at Guantanamo Bay

What would a fair process look like, and why does it matter so much?

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Editor’s note: Ongoing coverage of the military commission hearing at Guantanamo is a collaboration between Truthout and Seton Hall University School of Law, Center for Policy and Research.

All this week, the motions hearings for the 9/11 detainees are proceeding before the military commission at Guantanamo Bay, Cuba. While I will not endeavor to reiterate every argument on each motion, I do think it is important to take a more long-range look at the motions themselves (in several groupings), and to at least begin a discussion of the persistent and underlying questions that have plagued this commission seemingly from their inception: are they fair, or even capable of being fair? What would a fair process look like, and why does it matter so much?

As the parties spend the week – and likely, the next several years – debating these questions, the answers seem to lie in the procedural safeguards that the law promises those who are suspected or accused of a crime by the government. This promise of due process serves two masters. The first is the individual who is suspected or accused. The Constitution, and all the rights enshrined therein, persist even in the face of an all-powerful government. But due process serves each of us, as well. For the rest of society, the process afforded a defendant ensures that the ultimate result of the government’s suspicions or accusations – which it pursues in all of our names – will be fair. The process legitimates the outcome. To paraphrase the parties themselves, justice is not any particular outcome; it is a method by which the outcome was achieved.

But, as always, the devil is the details. And for all the rhetorical flourish that each advocate and serving judge Army Col. James Pohl lend the commission as they seek to define the parameters of the process, it takes more than rhetoric to answer the underlying questions of what, if anything, can instill a sense of legitimacy in these proceedings. Still, we have to start somewhere, and I have grouped the motions and arguments into broad categories in an effort to start this conversation.

The Role of Defense Counsel

Several motions before the commission deal with complex questions surrounding the role of the defense counsel in these proceedings. Without delving into the minutiae of each, some general observations may serve to contextualize the descriptive narratives of these motions available in the broader media.

No one seems to doubt the vital role defense counsel play in these proceedings. A zealous advocate for the accused is a long-guarded tradition in the American adversarial process, and there seems to be a solid consensus that the lawyers representing the defendants in these proceedings are among the most skilled and dedicated available. But while counsel for the accused are outstanding lawyers, they have also been asked to do an impossible job. Their qualifications should not shield the reality that they are operating in a system that may well confound their ability to represent their clients. That they lend their names, their energies and – for some, it seems – their lives to fulfilling the role they accepted as defense counsel should not alone serve to suggest that the process is, or can be, fair, given the uphill battle they inevitably face. As counsel raise issues ranging from access to their clients to unhealthy working conditions, to requirements, to inform the prosecuting authority of witnesses and expected testimony, to the conundrum of classified materials (which I will discuss in a moment), the question looms whether the task set for the attorneys is simply impossible. These lawyers are operating in a system in which many of the most basic ground rules for the representation of their clients remain undefined. Formed by Congressional Act with no clear procedural lineage (although the government may beg to differ on this point), the commission is riddled with procedural anomalies and vacuums that cannot help but cast doubt on the legitimacy of the whole.

The Defendant’s Role

Along with these unresolved questions about the role of defense counsel, the role of the defendants themselves hovers nearby. These defendants have made clear that they do not intend to go quietly to their fate. Instead, they have pushed to use available procedures as a platform to question the legitimacy of the commission and US foreign policy. While, on the first day of the hearings, they appeared far more compliant than at their arraignment in May, they continued to resist playing a defined or expected role in the process.

On Monday, Judge Pohl considered the question of whether or not the defendants could be compelled to appear in person before the commission. The defendants took the position that they should not be forced to appear in person for proceedings. They claimed that the right to be present at the proceedings was their own and therefore was capable of waiver. Somewhat surprisingly, the government took the position that the defendants could not absent themselves from the proceedings. Ultimately, Judge Pohl agreed to a procedure that would allow the defendants to voluntarily waive presence. In the following days, various defendants have availed themselves of this process and have not appeared.

This all may seem like a relatively minor issue – the question of whether a person, even a detainee, can opt out of his own trial. But a superficial analysis misses the underlying significance of the discussion. Entwined in this request not to be present is inevitably the question of why the defendants want to be absent in the first place. The answer to this question came from both defendants’ counsel and the defendants themselves. Defense counsel argued that the process of being brought to the commission each day in restraints resurrected memories for the defendants of their own interrogation, capture and continued detention. While the commission forbids counsel from delving into details of this, public sources of information tell a story of prolonged and shocking torture and inhumane treatment. Given this reality, the defendants’ reluctance to undergo even the transport to the commission does not seem surprising or even unreasonable.

The argument not made by counsel – though it seemed always present in the courtroom – came from the defendants’ own sense of the process before them. Khalid Sheik Mohammed used the waiver colloquy to voice his belief that there is no justice in this court. Later, in the context of another motion, he asked to address the commission itself. When granted permission to speak, he admonished the judge to be wary of the government’s over-invocation of national security interests to justify closing portions of the commission and trampling constitutional rights. He warned that national security has become too easy a justification for killing. Regardless of whether or not one agrees with his assessment of the government’s claims of national security, the statement highlights a component of the defendants’ story that seems to confound the commission. These defendants refuse to engage in the ordinary script of the criminal system. Instead, they resist, and so seek to remind the world of who they were and what is at stake. They were among the most feared of all men – those who claim they planned and, at least indirectly, engaged in a devastating act of terrorism that forever changed our nation’s sense of security and itself. But they were also a group of men who had been held by their self-proclaimed enemy for nearly ten years awaiting trial. During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition.

Faced with trials in military commissions, KSM and his co-defendants chose to resist. In doing so, they bring to the surface the ugly realities of their circumstances and experiences that a “business as usual” hearing would be able to ignore. In their defense of resistance, they not only declined to recognize the authority of the court, but they call into question the legitimacy of a system that was already questionable. They seek to transform their criminal trials into a commentary on the system itself.

So here lies the irony: the very men who, according to the charges levied against them, sought to destroy the nation are using their trial to send a warning that the nation, in curtailing the judicial process in their cases, may have exposed itself to a more abstract but nonetheless real danger: the erosion of the Constitution itself.

From the question of whether the defendants could refuse to appear, the commission moved to the question of what they could wear when they did arrive. The major dispute was whether or not the commission should permit KSM to wear a camouflage vest. Defense counsel argued that KSM saw the vest as part of his uniform as a former mujahedeen fighter, and therefore critical to his defense, and, indeed, integral to his identity. The government opposed the motion, arguing, among other things, that KSM did not in fact wear a uniform. Ultimately, the commission ruled that KSM could wear the vest, but only, among other restrictions, if it was not the current uniform of any US military branch.

Again, this may seem like a small battle on a variety of levels, but it is deceptive in its simplicity. The discussion on the surface was about the vest KSM would wear to hearings, but underneath was a desire to redefine the terms of the case, the defense and the defendant’s identity itself. If KSM shifts from the role of terrorist to solider, it could fundamentally alter our notion of either him or the crimes he allegedly masterminded. Before a civilian court, this might be a hard sell, but before a jury of military personnel, it might carry more weight.

The Classification Conundrum

This brings us to perhaps the most surreal portion of the hearings to date: the debate over classification. This is a muddled sphere, but here’s the summary, as far as I can tell. No one seems to dispute that classified information will be used in this trial by both sides. What is in question is the very nature of that information and how it should be handled in a trial. There are some key points to address before launching into the larger constitutional issues:

Information is classified by various government agencies. Once this designation is assigned, it places limitations on who can have access to the information. Those with clearance to review classified information can do so, but will face sanctions if they disseminate the information to those without clearance (think, the general public or a defendant). The defense attorneys have clearance to review the classified information in connection with their representation of their clients.

Here’s where it gets tricky.The defendants were exposed to classified information during their interrogations, insofar as they know the methods the CIA (or some other agency) used to attempt to extract information from them after they were captured. The government is claiming, however, that this information is classified. Even writing this, it seems like such an odd configuration. The defendants did not choose to be exposed to the top secret CIA interrogation methods. Given a choice, each would likely have preferred to stay blissfully ignorant of methods of information extraction like waterboarding or sleep deprivation. But they were exposed to it. Now the memories of those experiences are tied part and parcel to their defenses, yet their ability to present this defense is restricted. Though it appears that they could present the information, it would be only in a closed hearing. This means that the public, in whose name the commission was created in the first place, would never hear the defendants’ explanation of what happened to them at the hands of our government.

This is no small thing. The American trial system is a public one. On any given day, any of us can enter a courtroom and observe the machinations of the criminal justice system. As entertaining as court can be, this ability to observe is important for other reasons. Trials serve functions beyond just determining the guilt of a defendant. They are a window into our government. They create an opportunity for competing narratives to be heard by the community around them. They allow each of us to hold the law side by side with our own life experiences and decide if it is truly reflective of our will. In all this, there are not only amazing moments in the democratic process, but courts also offer a sense that in all its formalism, the system serves a valuable function in its transparency and the legitimacy such transparency creates.

Closing a trial undermines this. For this reason, the presumption in the system is one of an open public system. The Supreme Court has time and again reaffirmed the right to the public trial as one enjoyed not only by the accused, but also by the citizenry. Closing a trial is an extreme and rare occurrence. It can be done only after a court engages in a weighing test that favors an open trial.

The military commission and the classified information that forms the evidence in the case, therefore, present a puzzling conundrum. On the most basic level, the presumption of the commission is closure. Much has been written about the so-called 40-second delay between the live proceeding and the spectator galleries in Guantanamo Bay or one of the remote viewing sites. This delay allows the court security officer (CSO) to censor classified information if it inadvertently, or purposefully, gets raised in a live proceeding. The surreal nature of this delay for those viewing the proceedings has been much discussed. More significantly, however, its ultimate purpose is to keep the hearing closed to the public unless and until the CSO opens it. Nowhere was this reality more apparent than, when in response to concerns voiced by Judge Pohl over KSM’s desire to speak, a representative of the government assured the commission that if there was a problem, the 40-second delay would ensure that the public never heard KSM’s words.

The parties and the American Civil Liberties Union (ACLU), as intervenor, spent the last two days arguing over classification mechanisms, protective orders and the notion of an open trial. In deciding these issues, Judge Pohl is faced with a difficult conundrum. If he adopts the government’s proposed order for the treatment of classified information, he will have engaged in a sweeping brand of prior restraint that will undermine much of the transparency that Gen. Mark Martins has promoted in his time as chief prosecutor. But if he doesn’t, he is faced with choices that will position the case in untested waters indeed.

For example, if he finds that the defendants’ accounts of their own torture and interrogation do not meet the definition of classified information, would he nonetheless decide to close the hearings in which the defendants testified to their treatment because of some compelling government interest that likely fueled the classification in the first place? What sort of test would he require from the government to demonstrate that interest, and would this hearing itself have to be closed, given that the compelling interest may involve other classified materials? Even if the defendants’ memories are not classified when spoken of by the defendants themselves, would they become classified if spoken of by defense counsel who do not “enjoy” the firsthand perspective of these memories their clients do?

In the alternative, if the statements regarding their own experiences are classified, can this truly prevent the defendants from speaking of them? The defendants, after all, have no security clearance – unless that is also a classified matter that I, as a member of the uncleared public, have not been made privy to. The list of bizarre permutations goes on and on.

What Makes the Process Fair?

At the end of the day, these issues are deceptively simple while posing complex questions about the legitimacy of the proceedings. As the commission prepares to take up the question of whether or not the Constitution applies to it, the question hovers: what would it take to instill confidence in these proceedings? For some, the likely answer lies at the poles – either it is already legitimate, or it is not and never can be. For Judge Pohl and the participants, the question becomes what procedure will suffice, and what procedure is surplusage. No matter the outcome, it matters.

How these trials are conducted is a reflection of our values as a people and a country. No matter how any one of us feels about the experiences of 9/11 or these individual defendants, our humanity and our democracy require that we hold fast to those values that have stood us well through revolution, civil war, two world wars and countless other challenges. We, as a nation, may be more than the sum of our liberties and rights, but at the end of the day, we are a nation because of them. And in our fight to find the process due these defendants, we set the standard for ourselves. Will we recognize the value of dignity and humanity even in those we may ultimately execute? Or will we forgo process for expediency? Will we sacrifice who we are in the name of national security, or will we fulfill our role as citizens and challenge the three branches of government to account for restrictions on liberty?

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